Breach of Duty (continued)

Lower standard: children

There is no defence of ‘childhood’: Gorely v Codd [1967] 1 WLR 19 – unlike the criminal law.

Not the standard of the ordinary prudent and reasonable adult

Instead, it is the standard of the ordinary prudent and reasonable child of the same age as the defendant

Closer child gets to adulthood, closer standard gets to adult standard.

McHale v Watson (1966) 115 CLR 199

“The standard of care being objective, it is no answer for [a child,] any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow-witted, quick-tempered, absent-minded or inexperienced. But it does not follow that he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard.” Justice Owen

Mullin v Richards [1998] 1 W.L.R. 1304

“girls of 15 playing together may play as somewhat irresponsible girls of 15” (1312 per Butler-Sloss LJ)

Children and Adult Activities

Conflict arises when child is doing an adult activity.

If a child is driving (on the public road) should the standard of care be

• The standard expected of a reasonable child of their age; or

• The standard expected of a experienced, skilled and careful driver (Nettleship)?

Owens v Lewis [2024] EWHC 609 (KB) – the facts

15-year-old defendant

Claimant was given a lift on a quad bike (along with two other passengers). Claimant sat on the rear rack.

Passengers were not wearing helmets

The quad bike was driven at between 25 to 30 mph on the public road

The claimant fell off and suffer a traumatic brain injury

Two breaches alleged

• permitting the claimant to travel as a passenger on the quad bike, which was not intended to carry passengers

• driving at an excessive speed on the public road (although driving below the speed limit)

First breach was admitted; second was denied

The court decided that if you are driving a public road, it is the Nettleship standard so the standard of care is a skilled, and experienced driver as other drivers expect other drivers to be skilled and experienced.

Smedley v Piazzaolla 59 A.D.2d 940 (1977)

4 year old child defendant released the handbrake on a car

In releasing the handbrake the defendant did not “operate… the car in the true sense of the word”

Therefore the standard of care is not that of a reasonable careful and skilled driver

Instead it is a reasonable 4-year-old child, and therefore no breach

An alternative- parental liability for acts of children

Rather than fixing blame on the child who may not be in breach, the parent (or a person in the position of the parent) may be liable (as a reasonable and prudent adult) for failing to exercise proper supervision and control:

Carmarthenshire County Council v Lewis [1955] AC 549:

Child escaped onto road from nursery. Lorry driver swerved to avoid child and in doing so crashed and died.

"persons in charge of tiny children in premises adjoining a busy highway owe a duty to persons using the highway to take reasonable care to see that such children” Per Lord Tucker

Incapacity

Known pre-existing incapacity

If you know you cannot perform a particular action, it would be negligent to commence such action

Example: if you are blind it is negligent to drive

Waugh v Allen 1964 S.C. (H.L.) 102

Gemmel chose to drive but he started to feel weird – he thought it was simply indigestion. It ended up being a heart attack and he died in the car; with the car still in motion it caused a crash

Conclusion:

“the appellant has failed to prove that Gemmell acted rashly or negligently in driving off so soon after his illness” (Lord Reid)

Therefore he is not liable

Roberts v Ramsbottom [1980] 1 WLR 823

The defendant motorist suffered a stroke without warning shortly after commencing his journey

D had two collisions before colliding with the claimant’s parked vehicle two and a half miles from his home

D could remember nothing of the incidents

Did recall feeling strange

Court found that at the time he had been aware of the occurrence of the collisions and had had some control of his actions.

“The driver will be able to escape liability if his actions at the relevant time were wholly beyond his control. [What he is saying is that only if the driver had lost all control would the incapacity argument be considered]. Per Neill J

Mansfield v Weetabix [1998] 1 WLR 1263

Lorry belonging to Weetabix Ltd and driven by Terence Tarleton failed to take a sharp bend and crashed into the shop belonging to Mr and Mrs Mansfield

Tarleton was suffering from malignant insulinoma which resulted in hypoglycaemia, which meant that his brain was “unable to function properly”

Tarleton was unaware of his insulinoma, and the trial judge found that, if he had been aware that his ability to drive had been impaired then he would have stopped driving.

Tarleton was not (at any point) completely unconscious and had been seen “wrestling with the steering wheel in an attempt to negotiate the bend”

At first instance the judge held that Weetabix were vicariously liable for Tarleton’s negligence

The Court of Appeal reversed this decision ruling that although he continued to drive erratically, the fact that he was mentally impaired is sufficient basis that he is not liable.

“ the standard of care that [the employee] was obliged to show in these circumstances was that which is to be expected of a reasonably competent driver unaware that he is or may be suffering from a condition that impairs his ability to drive” per LJ Leggatt

Dunnage v Randall [2016] QB

Vincent Randall (VR) visited the house of Terry Dunnage (TD), his nephew.

VR was suffering from undiagnosed florid paranoid schizophrenia.

He brought a petrol can and cigarette lighter into the house. He made various accusations against the TD. VR became angrier and increasingly incoherent. He then stood and poured the petrol over himself. TD intervened to stop him but VR ignited the petrol.

This caused severe burns to TD. VR died at the scene.

The diagnosis of paranoid schizophrenia was “not reached in life but plainly indicated on a review of evidence available to health professions” (para [12])

The courts rule that he is Randall is liable as he fell below the standard of care, he would only be able to escape liability if the action was involuntary (no control).

“The courts have consistently and correctly rejected the notion that the standard of care should be adjusted to take account of personal characteristics of the defendant.” per Tomlinson LJ