Within the predicament between WCC and Julie, WCC have admitted that a duty of care is owed. WCC were right to admit that they owe a duty of care because it is clear to see that they did not take reasonable care towards Julie. This is evident by the fact the WCC decided to keep the old guidance ratio. Instead, WCC looked at the fact that they had had no problems with the student:staff ratio of 10:1 on school trips before so decided not to implement the new student:staff ratio of 8.1. From the ‘Neighbour Principle’ test and the ‘Three Stage’ test we can see that WCC have not taken reasonable care to avoid acts that would likely injury someone. This shows that WCC were correct in accepting responsibility of owing a duty of care to Julie.
From this, we must now be able show that WCC have breached that duty. In order to establish a breach of duty, we must look at how WCC should have behaved in the circumstances. Once done, it will identify whether or not they had met the required standard of care. We must first look at the case Blyth v Birmingham Waterworks. This case first developed the test that would determine whether the standard of care had actually been met. Within this case, Baron Alderson’s judgement outlined the foundation of the reasonable standard of care. He stated, “Negligence is an act to do something that the reasonable man in the same circumstances would do or doing something that a cautious reasonable man would not do.” From this quote, it showed the foundation of the “Reasonable Man Test”.
It has been acknowledged that an average person can sometimes make mistake. This was illustrated in the case Glasgow Corp v Muir when Lord Macmillan stated, what the reasonable man should consist of. He said, “The standard of foresight of the reasonable man is an impersonal test. It should capulise the characterizes of the particular person whose conduct is in question. From this it can thereby be left up to the judge to decide, what the reasonable man would have foreseen in the circumstances of a particular case.” This judgement was explained that every situation is different and some people can be nervous and shy whereas others can be forceful and confident.
The ‘reasonable man’ test was again improved in the case Wilsher v Essex HA. Within this case, Mullin LJ stated, “the duty must be tailored by the act not by the actor themselves”. From this judgement, it established that some people cannot be expected to have the same standard of care as the reasonable man would have, therefore the actual act must be evaluated, not the person in question. In some cases, there are groups of people who have exceptions to the ‘reasonable man’ test. Children are considered the main exception to this test. This was defined in the case Mullin v Richards the other groups consists of people who have an illness, a special skill, knowledge and even doctors. These exceptions help the court review the actions of the person’s circumstances and allows them to evaluate the standard of care that is required.
As stated above, doctors are one of the exceptional groups; this was outlined in the case Bolam v Friern Hospital Management Commitee. It was McNair J who stated that “A doctor is not negligent if he has acted in accordance with a practice accepted as appropriate by a responsible body of medical men skilled in that particular art” because of this statement it introduced the “Bolam Test”. This test set out the foundation for assessing the reasonable standards of care required when concerning skilled professionals.
Once it has been recognised that WCC have not acted properly within these circumstances. It will illustrate that the required standard of care has not been met. In order to establish a breach of duty, it is the claimant who has the burden to proof that, based on probabilities the act itself had fallen below standard. The claimant would be able to reply on the res ipsa loquitur (the thing speaks for itself). Res Ipsa Loquitur allows the courts to conclude that the defendant was negligent, can only be used if the defendant is unable to show reasonable evidence to suggest otherwise. From the case Gee v Metropolitan Railway Co, we are able to determine that the accident must be under the defendants’ control.
Within the situation between WCC and Julie, we are able to see that under the reasonable man test, the required standard of care was not met. This is apparent when you look at the reasons why the WCC decided not to implement the guidance. The WCC were aware of the recent cuts in the staffing budget and decided not to implement the new guidance. The reasonable man would have considered the dangers of the old ratio, instead of focusing on the budget cuts. From the ‘reasonable man test’, WCC have not met the required standard of care. It is also clear to see that WCC have indeed breached their duty. It is also apparent that the accident was under the control of WCC. If the new guidance of 8:1 was implemented, Julie would have had a teacher’s supervision. Meaning, Julie’s injury would not have happened. In conclusion, we can see that WCC has breached their duty of care.
The third element to show within negligence is whether the breach of duty had caused the claimants damage. It is imperative to know that there are two separate question of causation that must be satisfied- Causation in fact and Causation with Law. It was the case Barnett v Kensington, that established the test that would show Causation in Fact. This was called the ‘But For’ test. This test asks the question - but for the defendants breach would the damage have still occurred. Even though this test can sometimes be a straightforward question, there is an element of guesswork involved. Defined in McWilliam v Sir William Arrol guesswork was establishes to determined to find out what someone have actually done in the situation.
Causation in law has also been defined as remoteness. Remoteness looks at whether the damage was reasonably foreseeable. Even though Reasonably Foreseeable has already been identified within the tests ‘neighbour principle’ and the ‘Caparo three stage test.’ Remoteness actually looks back to what actually happened before the accident. This is used to see whether the accident occurred due to the risk within the actual activity.
The ‘But for Test’, identifies that if WCC had not breached their duty of care, Julie would not have been injured. This is evident when we look at the ratio of the guidance and the group of 40 students. If WCC had implemented the 8:1 ratio then there would have been four groups of eight and one teacher to supervise. However ‘but for’ the WCC keeping the old guidance the group of girls were split into five groups, meaning Julie’s group was supervised.
In conclusion we can see that through the three stages of negligence, we can see that WCC have indeed breached their duty of care. We were able to show that a duty of care was owed to Julie, through the ‘Neighbour Principle Test’. This test showed that WCC had not taken reasonable care to avoid a foreseeable act that would injure another individual. They admitted that a duty of care was owed however, they denied the fact that a breach of duty was owed, stating they had met the required standard of care. Thought the ‘Reasonable Man’ Test we were able to see how WCC should have acted in the circumstances. To do this we looked at the reasons, why WCC did not implement the new guidance and from looking at the situation from a reasonable man perception we seen that these reasons have not required a standard of care towards Julie. Once we established that a standard of care was not met, we looked at the res ipsa loqutor element. From this, we were able to see that the accident was in the control of WCC however, they failed to impose the new guidance, that would have stopped the injury from occurring. Following both these elements, we were able to come to a clear conclusion that WCC have breached their Duty of Care. We also established that their breach of care had caused Julie’s injury. By using the ‘But for test’ it looked at whether or not the injury would have happened if the 8:1 ratio had been in place. From our conclusions, we saw that if the 8:1 ratio had been in place then the accident would not have happened because there would have been a teacher supervising Julie’s group. Finally we have established that all three elements of negligence go against WCC, which ultimately shows that they have breached their duty of care and they are therefore liable for compensation from Julie.
Bibliography
Books
Bermingham V. & Brennan C, Tort Law Directions, 2nd Edition (OUP 2008)
Steele J, Tort Law, Text Cases and Materials, (OUP 2007)
John Hobgson & John Lewthwaite, Tort Law, 2nd edition ( OUP 2007)
Elliott C & Frances Quinn, Tort Law, 7th edition (OUP 2009)
Cases
Donoghue v Stevenson (1953) AC 562
Caparo Industries plc v Dickman (1990) 2 AC605
Blyth v Birmingham Waterworks Co (1856) 11
Glasgow Corp v Muir (1943) AC 448 ex 781
Wilsher v Essex HA (1988) 1 AC 1074
Mullin v Richards (1998) 1 WLR 1304
Bolam v Friern Hospital Management Committee (1957) 2 All ER 118
Gee v Metropolitan Railway Co ( 1873) iR 8 QB 161
Barnett v Kensington & Chelsea Management Committee (1969) 1 QB 428
McWilliam v Sir William Arrol (1962) 1 WLR 295
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