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Tort XIII - Breach of duty of care V

Updated on August 17, 2017

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 or duty of care is like a common benchmark and as long as the defendant has not fallen below the benchmark which 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 is not 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, someone, sometime would stumble across it and there was real likelihood that the person(s) 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 the 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 in 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.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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