Tort 13 - Breach of duty of care 5
In Wilson v Governors of Sacred Heart RC Primary School,
Carlton (1997) a 9-year-old school boy was hit in the eye with a coat by
another school boy and the skirmish occurred while the injured boy was running
towards the gate after school, eager to be on his way home. The court held that
the school had not fallen below the standard of care that was required and
while supervision is provided during lunch, it is common not to provide any
supervision while the children are about to head for home.
To some extent, standard of care is like a common benchmark
and as long as the defendant has not fallen below the benchmark that is
sometimes dictated by norms and practices or even customs for the matter, it is
possible to argue that it is common custom in certain areas or localities to
allow children to run towards the gates as soon as the bell that signals the
end of school is rung, the defendant will not be liable.
Gates v Mckenna (1998) presents an interesting set of facts.
The defendant who was a hypnotist was conducting a show on stage and in order
to exhibit his skills he asked for help from members of the audience. The
plaintiff volunteered and as a result of being subjected or exposed to hypnosis
the plaintiff developed schizophrenia. The plaintiff sued and was successful.
The court held that the level of care that the defendant was required to
exhibit was that of a reasonably skilled hypnotist.
In Jolley v Sutton LBC (1998) the council had left an
abandoned boat on a piece of land that it owned with a notice stuck to it that
warned others not to meddle with the boat and if the boat was unclaimed within
7 days it would be removed. The boat however was left abandoned for 2 years and
in that time it had further deteriorated and posed a hazard to trespassers or anyone
else who clambered on it or fiddled with it.
The boat was discovered by two 14-year-old boys who as boys
normally do got carried away with it and tried to do it up. While they were
trying to fix the boat, there was an accident and one of the boys suffered
serious spinal injuries and was paralyzed as a result. A claim was brought
against the council and the court found in favor of the plaintiffs. It was
reasonably foreseeable that if the boat was not disposed of, that someone,
sometime, would stumble across it and there was a real likelihood that the
person could sustain some form of harm or injury as a result.
Human nature prompts us to do various things and regardless
of whether the boat was discovered by adults or children it is foreseeable that
someone who was more curious than others or someone who was more adventurous
than others would try and fiddle or meddle with it. Sometimes the temptation is
just too great to do otherwise.
In Mullins v Richards (1998) two 15-year old school girls
were fighting with a plastic ruler and one of the rulers broke midway and a
splinter went into one of the girls’ eye causing her to lose her vision. The
question before the courts was the standard of care that was to be imposed. Was
it the standard of care of an adult or was it the standard of care of someone
who was the same age as the defendant? The court found that it was the latter
and the standard of care that was imposed was that of a 15-year old girl and
thus the defendant was held to be not liable.
It would be fair to surmise that the reasonable man’s test
under normal circumstances would be that of a man of average intelligence
subjected to the stresses and pressures most people in a society or community
are subjected to with the exception of minors. With minors the standard of care
that is applied is that of a minor.
In Carroll v Fearon (1999) the driver of a recently
purchased car lost control after the threads in one of the rear tyres came
undone causing him to spin on to the other side of the motorway and subsequently
collide with the plaintiff’s car causing serious injury to the plaintiff and
his family. The plaintiff sued and was successful. The court found that the
threads in the tyre had become undone as a result of defective manufacturing
and held the manufacturer to be liable.
Copyright © 2019 by Dyarne Ward and Kathiresan
Ramachanderam
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