Mens Rea IV - Negligence (I) (Blyth v Birmingham Waterworks Co. (1856))
The next type, class or category of Mens Rea is negligence. Negligence is defined as a breach of a legal duty to take care which results in damages to the claimant.
In Blyth v Birmingham Waterworks Co. (1856) (Court of Exchequer) * – The defendants were a body incorporated by statute to supply the town of Birmingham with water. According to s 84 the company should at the time of laying down any main pipe or any other main pipe on the street, fix at the time of laying down of the pipe a proper and sufficient fire-plug (a hydrant for a fire hose) in each street.
According to s 87, pipes were to be eighteen inches beneath the surface of the soil and according to s 89 the mains were at all times to be kept charged with water. The defendants derived no profit from the maintenance of the plugs distinct from the general profits of the whole business, but such maintenance was one of the conditions under which they were permitted to exercise the privileges given or granted by the Act.
On February 24, a large quantity of water escaped from the neck of the main and forced its way from the ground into the plaintiff’s house. The plaintiff sued for damages. The case was tried before a jury and the County Court Judge found in favor of the plaintiff. The defendants appealed.
Baron Anderson - “The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done” - verdict to be entered for the defendant.
Negligence is the act of doing something, which under the circumstances, a reasonable or a prudent man, guided by the considerations that normally regulate the conduct of human affairs, would not do or the act of not doing something, which under the circumstances, a reasonable and a prudent man, guided by the considerations that normally regulate the conduct of human affairs, would do.
Therefore, there are two types of negligent acts: -
(i) The act of doing something which a reasonable and prudent man would not do and
(ii) the act of refraining or abstaining or not doing something which a reasonable and prudent man would do (omission). Omission in most instances is a failure to do that which is required by law (either statutory or common law).
Acts of omission are more common when there is a parent-child relationship. For example, as in the case of R v Senior (1899). The defendant belonged to a religious sect called the Peculiar People who objected on religious grounds to obtaining any form of medical advice or treatment. The defendant’s son died as a result. The defendant was charged with manslaughter founded upon s.1 of the Prevention of Cruelty to Children Act, 1894.
"If any person over the age of sixteen years, who has the custody, charge or care, of any child under the age of sixteen years, willfully assaults, illtreats, neglects, abandons, or exposes, such child, or causes or procures such child to be assaulted, illtreated, neglected, abandoned, or exposed, in a manner likely to cause such child unnecessary suffering, or injury to its health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of a misdemeanor”.
In order to obtain a conviction, the jury must be satisfied that: -
(i) the death of the child had been caused or accelerated by the want of medical assistance,
(ii) that medical aid and medicine were such essential things for the child, that reasonably careful parents in general would have provided them and
(iii) the prisoner's means would have enabled him to do so, without an expenditure such as could not be reasonably expected from him
- The defendant was convicted.
In more recent times in R v Dytham (1979) a police officer was charged with the offence of misconduct (dereliction of duty) because he stood ideally by and watched a bouncer kick a man to death. The defendant argued that the offence of misconduct (dereliction of duty) could not be committed by omission.
It was held that, in the above instance, the officer was indeed guilty of misconduct (dereliction of duty). (However, this has to be read in light of Michael v Chief Constable of South Wales (2015) where it was held that the police did not owe a victim a duty of care in negligence to protect him or her from harm caused by a third party).
The test of the reasonable and prudent man is also known as the objective test or the reasonable man’s test. It is a standard that is observed in cases of negligence.
The concept of the reasonable and prudent man has been around for some time and it is by no means new or novel. In Jones v Boyce (1816) for example, the plaintiff was a passenger in the defendant’s coach. While they were travelling, the reins broke and it appeared that the coach was about to crash. The defendant fearing for his life jumped out of the coach and was injured as a result.
As in turned out, the coach did not crash as expected but regardless the plaintiff sued for the injury he had incurred. The defendant argued that the plaintiff had been contributorily negligent. It was held that because the defendant’s actions were those of a reasonable and prudent man, he was not contributorily negligent.
And just who exactly is the reasonable and prudent man? The reasonable and prudent man in negligence is the man on the Clapham Omnibus - Hall v Brooklands Auto Racing Club (1933) i.e. any person who does not belong to either extreme of the scale but rather a person who is subjected to the stresses and pressures most people in a community or a society are subjected to.
In Hall v Brooklands Auto Racing Club (1933) – the defendants were racetrack owners who’d erected railings around the track for spectators to stand behind and watch the races. Two spectators stood in front of the railings close to a curb and as a result were killed in an accident involving two competing cars. (It was held that if a person(s) willingly puts himself or herself in a position where he or she is likely to incur some form of injury or other, that the onus (burden) is on that person(s) and the injured person(s) is not able to bring an action against someone else for example, as in this case, the owners or the proprietors of the racetrack. This is in accordance with the principle of volentia non fit injuria i.e. “to a willing person, injury is not done”).
At this stage however we are only concerned with identifying the two limbs of negligence and establishing the identity of the reasonable man. Volentia non fit injuria is a principle that we’ll be looking into further at a later date.
Another interpretation of the reasonable man is given in Davis Contractors v Fareham Urban District Council (1956). Lord Radcliffe referred to the reasonable man “as the anthropomorphic conception of justice”.
According to the facts, Davis Contractors were contracted to build houses for Fareham Urban District Council. The Contactors (Davis Contractors) agreed to build a specific number of houses at a fixed price, within a specified time-frame, and were paid accordingly.
The houses took longer to complete and the costs were much more than expected. Davis contractors argued for more money on the grounds that the contract had been frustrated and that they should be paid reasonable value for the services that they had rendered. It was held that the contract was not frustrated.
In order to be successful in a negligence claim, the plaintiff must be able to establish or satisfy the 4 following ingredients or components: -
In Blyth v Birmingham Waterworks Co. (1856) Birmingham Waterworks owed, by virtue of being a body incorporated by statute, the plaintiff a duty of care to take reasonable care and precaution while carrying out its duties.
However, there was nothing to indicate that the defendants had not carried out their duties diligently. The apparatus had worked well for 25 years and the defendants’ engineer had stated that the accident might have been caused by severe frost. One of the severest frosts on record set in on the 15th of January, 1855, and continued until after the accident in question.
Despite owing a duty of care, the defendants would be deemed to have taken reasonable care if the apparatus was constructed in a manner that was prevalent at the time, and in accordance with the standards and procedures that were available at the time. The fact that there was a severe frost was not something that the defendants could have foreseen or something that the defendants could reasonably have contemplated.
* The Court of Exchequer was an ancient court set up by William the Conqueror (William I). It was initially able to administer both equitable remedies and common law remedies but its equitable jurisdiction was taken away in 1842 and transferred to the Court of Chancery.
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