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VARYING THE STANDARD OF CARE IN NEGLIGENCE

Published online by Cambridge University Press:  20 November 2013

Donal Nolan
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Abstract

This article explores the variation of the standard of care in negligence to favour defendants, an issue of considerable practical significance which has not previously been the subject of systematic analysis. By shining a spotlight on this issue I hope to show that varying the standard of care in this way is a useful technique, which is and could be used in a number of types of case to achieve an appropriate balance between liability and non-liability. I also hope to show that if this technique is employed there are some ways of varying the standard of care which are preferable to others. The structure of the analysis is centred around three core questions. First, to what extent has English negligence law already varied the standard of care to favour defendants? Secondly, if the standard of care is to be varied, how should this be done? And thirdly, when and why might the use of a modified standard of care be desirable?

Keywords

Negligencestandard of carebreach of dutysubjective standardgross negligenceWednesbury unreasonablenessrecklessness
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Articles
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The Cambridge Law Journal , Volume 72 , Issue 3 , November 2013 , pp. 651 - 688
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Copyright © Cambridge Law Journal and Contributors 2013 

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References

1 Blyth v Birmingham Waterworks Co. (1856) 11 Exch. 781, 784; 156 E.R. 1047, 1049 per Alderson B.

2 The common law developments are discussed below, text following note 51.

3 Associated Provincial Picture Houses v Wednesbury Corp. [1948] 1 K.B. 223.

4 JD v East Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 A.C. 373 at [92]–[94] per Lord Nicholls. See also para. [49] per Lord Bingham.

5 Law Commission, Administrative Redress: Public Bodies and the Citizen (Law Com C.P. No. 187, 2008).

6 Law Commission, Administrative Redress: Public Bodies and the Citizen (Law Com No. 322, 2010), at 3.75.

7 The Commission described the test as “the key” to its proposals: Law Com C.P. No. 187, at 4.152.

8 Civil Liability Act 2002, s. 5X. For other examples from Australian state legislation, see note 93 below.

9 For examples of incidents along these lines in the US and China respectively, see “Hospital Refused to Help Shot Boy of 15 Dying in the Street”, The Times, 19 May 1998; and “Chinese City Poised to Introduce Country's First Good Samaritan Rules”, The Guardian, 30 November 2011. For a sceptical view of such protection in the case of professional medical assistance, see Williams, K., “Medical Samaritans: Is There a Duty to Treat?” (2001) 21 O.J.L.S. 393CrossRefGoogle Scholar, 411.

10 § 680 B.G.B.

11 In the majority of US states, “good Samaritan” statutes confer immunity on those who provide emergency medical care without the expectation of remuneration unless gross negligence or wilful misconduct is established. For an example at federal level, see the Aviation Medical Assistance Act 1998. See also the federal Volunteer Protection Act 1997, which gives similar protection to volunteers engaged in the activities of non-profit organisations and government entities.

12 See, e.g., Emergency Medical Aid Act 1979 (Saskatchewan); Good Samaritan Act 1996 (British Columbia); Emergency Medical Aid Act 2000 (Alberta); Good Samaritan Act 2001 (Ontario); Quebec Civil Code, art. 1471. All this legislation sets the standard at gross negligence (or in the case of Quebec, “gross fault”).

13 For protection of good Samaritans acting in good faith and without recklessness, see Civil Liability Act 1936, s. 74 (South Australia); Civil Law (Wrongs) Act 2002, pt 2.1 (ACT); Civil Liability Act 2002, pt 8A (Tasmania); Civil Liability Act 2002, s. 5AD (Western Australia). In Queensland, the standard is one of gross negligence: Law Reform Act 1995, pt 5. In the two most populous states, even greater protection is given: Wrongs Act 1958, s. 31B (Victoria); Civil Liability Act 2002, s. 57 (New South Wales).

14 Law Reform Commission, Civil Liability of Good Samaritans and Volunteers (L.R.C. 93, 2009).

15 Ibid., para. 4.81.

16 Cattley v St John's Ambulance Brigade (Q.B.D., 25 November 1988).

17 Lord Young of Graffham, Common Sense, Common Safety (2010) <www.gov.uk/government/uploads/system/uploads/attachment_data/file/60905/402906_CommonSense_acc.pdf> accessed 2 August 2013, 23.

18 Of course, the use of a subjective standard of care might favour the claimant in a particular case, but because it represents a departure from the objective standard which could favour defendants it falls within the scope of my enquiry.

19 Another, neater, way of expressing this idea would be to refer to “lowering the standard of care”, but this formulation has been avoided since it can give rise to confusion. The reason for the confusion seems to be that although in these cases the standard of care is lowered, the hurdle which the claimant must clear to establish breach of duty is raised, and it is from the claimant's perspective that we tend to view the elements of a negligence action.

20 Mullin v Richards [1998] 1 W.L.R. 1304; Orchard v Lee [2009] EWCA Civ 295, [2009] P.I.Q.R. P16.

21 Wilsher v Essex A.H.A. [1987] Q.B. 730.

22 Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582, 587 per McNair J.

23 See, e.g., P. Cane, The Anatomy of Tort Law (Oxford 1997), p. 41. The test has been described as a “partial immunity rule”: D. Howarth, “Negligence After Murphy: Time to Re-think” [1991] C.L.J. 58, 96.

24 See Connor v Surrey C.C. [2010] EWCA Civ 286, [2011] Q.B. 429 at [66] per Laws L.J.

25 As suggested by Kidner, R., “The Variable Standard of Care” (1991) 11 L.S. 1Google Scholar, 16.

26 See Daborn v Bath Tramways Motor Co. Ltd [1946] 2 All E.R. 333; Watt v Hertfordshire C.C. [1954] 1 W.L.R. 835.

27 See Wooldridge v Sumner [1963] 2 Q.B. 43, 68–69 per Diplock L.J. (and see similarly pp. 56–57 per Sellers L.J.).

28 Although there are occasionally references to volenti-type arguments in the case law, these cannot furnish a justification for a lower standard of care, since there is no reason to suppose that the participants in such activities impliedly consent to negligence (as determined by the ordinary standard of care) on the part of others involved. They can be said to impliedly consent to the inherent risks of the activity, but that just goes to show that the volenti analysis is superfluous, since by definition those risks are not the result of negligent conduct.

29 Wooldridge v Sumner [1963] 2 Q.B. 43, 68.

30 Ibid.

31 Blake v Galloway [2004] EWCA Civ 814, [2004] 1 W.L.R. 2844 at [15]. See also Wilks v Cheltenham Cycle Club [1971] 1 W.L.R. 668, 670 per Lord Denning M.R., 674 per Edmund Davies L.J., 676 per Phillimore L.J.; Condon v Basi [1985] 1 W.L.R. 866, 867–868 per Sir John Donaldson M.R.

32 Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] A.C. 358.

33 [1972] A.C. 877.

34 [1980] Q.B. 485.

35 Although the claim in Leakey was brought in private nuisance, the analogous case of Goldman v Hargrave [1967] 1 A.C. 645 was pleaded in negligence, and it has been said that in cases of this kind ‘[t]he label nuisance or negligence is treated as of no real significance’ (Delaware Mansions Ltd v Westminster C.C. [2002] 1 A.C. 321 at [31] per Lord Cooke).

36 See Holbeck Hall Hotel Ltd v Scarborough B.C. [2000] Q.B. 836, 852–853 per Stuart-Smith L.J.

37 Ibid., pp. 857–858 per Stuart-Smith L.J.

38 “Less must be expected of the infirm than of the able-bodied” (Goldman v Hargrave [1967] 1 A.C. 645, 663 per Lord Wilberforce).

39 Leakey v National Trust [1980] Q.B. 485, 526 per Megaw L.J.

40 British Railways Board v Herrington [1972] A.C. 877, 941–942 per Lord Diplock.

41 Ibid.

42 Ibid., pp. 898–899 per Lord Reid. See also p. 920 per Lord Wilberforce, pp. 941–942 per Lord Diplock.

43 Ibid., p. 909 per Lord Morris, pp. 926–927 per Lord Pearson, respectively.

44 [1932] A.C. 562, 580 per Lord Atkin.

45 Southern Portland Cement Ltd v Cooper [1974] A.C. 623, 642–644. See also British Railways Board v Herrington [1972] A.C. 877, 898–899 per Lord Reid, 936 per Lord Diplock. It is therefore surprising that some commentators maintain that the duty of common humanity was simply an application of the ordinary standard of care: see, e.g., D. Ibbetson, An Historical Introduction to the Law of Obligations (Oxford 1999), 192.

46 Occupiers' Liability Act 1984, ss. 1(3) and 1(4).

47 Law Commission, Report on Liability for Damage or Injury to Trespassers and Related Questions of Occupiers' Liability (Law Com. No. 75, 1976).

48 Swain v Nat Ram Puri [1996] P.I.Q.R. P442. This would appear to be the correct interpretation: see Jones, M.A., “The Occupiers' Liability Act 1984” (1984) 47 M.L.R. 713, 718Google Scholar. In the US, similar formulae requiring actual knowledge have been used to limit the duty owed to trespassers (see Restatement, Second, Torts (1977) §§ 334–339; W.P. Keeton et al., Prosser & Keeton on Torts, 5th ed. (St Paul 1984), 398).

49 Tomlinson v Congleton B.C. [2003] UKHL 47, [2004] 1 A.C. 46 at [13]. See also para. [68] per Lord Hobhouse.

50 Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231, [2003] Q.B. 1008 at [31].

51 [1970] A.C. 1004, 1031.

52 [1995] 2 A.C. 633.

53 Ibid. pp. 736–738 per Lord Browne-Wilkinson.

54 C. Booth and D. Squires, The Negligence Liability of Public Authorities (Oxford 2006), para. 2.27. See also Pyrenees Shire Council v Day (1998) 192 C.L.R. 330 at [253] per Kirby J. (requiring the plaintiff to satisfy the public law irrationality test imposes a more onerous burden than proof of ordinary negligence).

55 [1995] 2 A.C. 633, 761.

56 [2001] 2 A.C. 550.

57 Ibid. p. 586.

58 [2001] 2 A.C. at pp. 652–653.

59 [2001] 2 A.C. at p. 591.

60 [1995] 2 A.C. 633, 750.

61 [2001] 2 A.C. 550, 572–573. Lord Hutton dismissed the argument on the ground that the provision of foster care (the issue in Barrett) was not as delicate as the task of the defendants in X(minors): ibid., p. 589.

62 [2001] 2 A.C. at p. 672.

63 [2001] 2 A.C. at p. 572. See also p. 591 per Lord Hutton.

64 [2001] 2 A.C. at p. 655.

65 Ibid., p. 667.

66 [2001] Fam. 313, 338.

67 [2005] EWCA Civ 19, [2005] 1 W.L.R. 2312 at [43].

68 See, e.g., M.J. Bowman and S.H. Bailey, “Negligence in the Realms of Public Law: A Positive Obligation to Rescue?” [1984] P.L. 277, 306–307; S. Todd, “Liability in Tort of Public Bodies” in N.J. Mullany and A.M. Linden (eds), Torts Tomorrow: A Tribute to John Fleming (Sydney 1998), pp. 46–47.

69 See Doyle, J. and Redwood, J., “The Common Law Liability of Public Authorities: The Interface Between Public and Private Law” (1997) 7 Tort L. Rev. 30, 34Google Scholar.

70 See text at note 182 below.

71 Booth and Squires, The Negligence Liability of Public Authorities, para. 1.35 (including footnote). See also para. 1.37.

72 Notably Lord Reid in Home Office v Dorset Yacht Co. Ltd [1970] A.C. 1004.

73 [1987] A.C. 241.

74 [2009] UKHL 11, [2009] 1 A.C. 874.

75 [1970] A.C. 1004.

76 [1987] A.C. 241.

77 See [1987] A.C. 241, 280 (“Problems such as these are solved in Scotland, as in England, by means of the mechanism of the duty of care …”).

78 Ibid., p. 279.

79 A point highlighted by Howarth, “Negligence after Murphy”, p. 73.

80 Lord Keith agreed with Lord Mackay and Lord Goff.

81 See Markesinis, B.S., “Negligence, Nuisance and Affirmative Duties of Action” (1989) 105 L.Q.R. 104, 108–111Google Scholar.

82 [1987] A.C. 241, 206–207. See also p. 273 per Lord Goff.

83 Ibid., p. 261.

84 [1943] A.C. 448.

85 E. Reid, “Smith v Littlewoods Organisation Ltd (1985)” in C. Mitchell and P. Mitchell (eds), Landmark Cases in the Law of Tort (Oxford 2010), 263.

86 Ibid., pp. 259–260. The decision of the Inner House can be found at 1986 S.L.T. 272. Other commentators who have interpreted Lord Mackay's reasoning as breach-oriented include Markesinis, op. cit., and Howarth, D., “My Brother's Keeper? Liability for Acts of Third Parties” (1994) 14 L.S. 88, 94–95Google Scholar.

87 Cf. [1987] A.C. 241, 268–269.

88 See Overseas Tankship (UK) v Miller Steamship Co. Pty [1967] 1 A.C. 617, 642 per Lord Reid.

89 [1987] A.C. 241, 251.

90 See Dickinson v Cornwall C.C. (Q.B.D., 10 December 1999), where Steel J. said that “[a]n affirmative duty to prevent deliberate wrongdoing by a third party will only arise where the action is not merely foreseeable but likely to happen”; and Crosby v Regency Security Services Ltd (Colchester County Court, 18 May 2006), where H.H.J. Yelton said that a nightclub doorman could only be held liable for an assault by one patron on another if it was “highly probable” that such an assault would take place.

91 [2009] UKHL 11, [2009] 1 A.C. 874 at [20] per Lord Hope, at [56] per Lord Rodger, at [76] per Lady Hale.

92 Ibid., at para. [20].

93 See Civil Liability Act 2002 (Western Australia), s. 5X (applying a Wednesbury unreasonableness standard where a negligence claim arises out of a policy decision taken in the performance or non-performance of a public function); Civil Liability Act 2002 (New South Wales), s. 43A (applying the test to claims based on the exercise or non-exercise of a “special statutory power”); and Road Management Act 2004 (Victoria), ss 39, 103 (applying the test to policy decisions of road authorities). Legislation in five Australian states also adopts the Wednesbury standard for breach of statutory duty cases involving public authority defendants. See further, Carroll, E., “Wednesbury Unreasonableness as a Limit on the Civil Liability of Public Authorities” (2007) 15 Tort L. Rev. 77Google Scholar.

94 See P. Craig, “The Domestic Liability of Public Authorities in Damages: Lessons from the European Community?” in J. Beatson and T. Tridimas (eds), New Directions in European Public Law (Oxford 1998). See also M. Andenas and D. Fairgrieve, “Sufficiently Serious? Judicial Restraint in Tortious Liability of Public Authorities and the European Influence” in M. Andenas (ed.), English Public Law and the Common Law of Europe (London 1998).

95 Law Commission, Administrative Redress: Public Bodies and the Citizen (Law Com. C.P. No. 187, 2008).

96 Review of the Law of Negligence: Final Report (Commonwealth of Australia, 2002), <revofneg.treasury.gov.au/content/Report/PDF/LawNegFull.pdf>accessed 31 July 2013, para. 10.27. See also Precision Products (NSW) Pty Ltd v Hawkesbury C.C. [2008] NSWCA 278 at [176]–[177] per Allsop Aronson, P. M., “Government Liability in Negligence” (2008) 32 Melbourne U. L. Rev. 44, 76Google Scholar.

97 See R. v Secretary of State for Transport, ex p. Factortame Ltd (No. 5) [2000] 1 A.C. 524, 550–551 per Lord Hope; Craig, P.P., “Once More Unto the Breach: Community, State and Damages Liability” (1997) 113 L.Q.R. 67Google Scholar, 73.

98 Law Commission, Administrative Redress: Public Bodies and the Citizen (Law Com. No. 322, 2010), para. 3.34 (comment of Professor C. Harlow). See also du Bois, F., “Human Rights and the Tort Liability of Public Authorities” (2011) 127 L.Q.R. 588Google Scholar, 604.

99 T. Cornford, “Administrative Redress: The Law Commission's Consultation Paper” [2009] P.L. 70, 82.

100 Law Com. C.P. No. 187, para. 4.143. See also the factors listed as having been taken into account in the application of the serious fault test to past judicial review cases (Appendix C, note 4), which closely mirror those taken into account in the application of the EU law test.

101 Ibid., para. 4.145 (emphasis in original).

102 See text following note 175 below, where it is argued that this is in fact the best definition of gross negligence.

103 Law Com. C.P. No. 187, para 4.146, points (2) and (7).

104 The likely gravity of the harm is of course a factor in an orthodox negligence analysis, but not the actual harm caused, which appeared to be the Commission's focus (and which is also taken into account when applying the EU law test of sufficiently serious breach).

105 It is telling that all the Commission's examples of the test's operation were drawn from public law, and that the test provoked much more, mostly adverse, comment in relation to its proposed operation in private law (Law Com No. 322, para. 2.80).

106 Aronson, “Government Liability in Negligence”, p. 80. See also Carroll, “Wednesbury Unreasonableness”, p. 87 (Wednesbury unreasonableness not an appropriate substitute for the standard of care in negligence, because it “removes the concept from its context … and disregards its function within public law”).

107 Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] A.C. 358.

108 See K. Oliphant (ed.), The Law of Tort, 2nd ed. (London 2007), para. 17.53.

109 See Prosser & Keeton on Torts, pp. 212–214; Restatement, Second, Torts § 501(2) (causation), § 503 (contributory negligence), § 908 (punitive damages).

110 Civil Liability Act 1936, s. 74 (South Australia); Civil Law (Wrongs) Act 2002, pt 2.1 (ACT); Civil Liability Act 2002, pt 8A (Tasmania); Civil Liability Act 2002, s. 5AD (Western Australia).

111 Hence “recklessness differs in kind from lack of care” (Southern Portland Cement Ltd v Cooper [1974] A.C. 623, 642 per Lord Reid). See further on the relationship between the two concepts, Edgerton, H., “Negligence, Inadvertence and Indifference; The Relation of Mental States to Negligence” (1926) 39 Harv. L. Rev. 849CrossRefGoogle Scholar; Cane, P., “Mens Rea in Tort Law” (2000) 20 O.J.L.S. 533, 535–538Google Scholar; A. Merry and A. McCall Smith, Errors, Medicine and the Law (Cambridge 2001), ch. 5. Of course, this assumes a test of subjective recklessness (or “conscious indifference”), but since objective recklessness (or “non-conscious indifference”) and negligence are practically indistinguishable it is difficult to see any reason to import the latter form into tort law (Cane, op. cit., pp. 553–554).

112 See W.W. Buckland, Textbook of Roman Law, 2nd ed. (Cambridge 1932), p. 556.

113 This technique has been employed in Australian state legislation to limit the liability of highway authorities for nonfeasance: see, e.g., Civil Liability Act 2002 (New South Wales), s. 45(1), which requires that the authority had “actual knowledge of the particular risk the materialisation of which resulted in the harm”.

114 [2002] EWCA Civ 1831, [2003] 1 W.L.R. 1472.

115 Knox v Mackinnon (1888) 15 R. (H.L.) 83, 87.

116 Leakey v National Trust [1980] Q.B. 485, 526.

117 Ibid.

118 R.W. Wright, “The Standards of Care in Negligence Law” in D.G. Owen (ed.), The Philosophical Foundations of Tort Law (Oxford 1995), 258–259.

119 Ibid., p. 265.

120 T. Honoré, “Are Omissions Less Culpable?” in P. Cane and J. Stapleton (eds), Essays for Patrick Atiyah (Oxford 1991), 51. Indeed, Wright himself goes on to argue that in nonfeasance cases a subjective approach may not only be permitted, but required: op. cit., p. 274 (discussing a duty to rescue).

121 See also R. Stevens, Torts and Rights (Oxford 2007), 124.

122 Elliott, S.D., “Degrees of Negligence” (1933) Southern California L. Rev. 92Google Scholar; Wright, C.A., “Gross Negligence” (1983) 33 U. Toronto L.J. 184CrossRefGoogle Scholar (written in 1927).

123 See Tunc, A., “Fault: A Common Name for Different Misdeeds” (1974) 49 Tulane L. Rev. 279Google Scholar. For an illuminating account of the different levels of negligent behaviour that can be found in a medical context, see Merry and McCall Smith, Errors, Medicine and the Law.

124 Wilson v Brett (1843) 11 M. & W. 113, 116; 152 E.R. 737, 739.

125 Armitage v Nurse [1998] Ch. 241, 254. See also Pentecost v London District Auditor [1951] 2 K.B. 759, 764 per Lynskey J., 766–767 per Lord Goddard C.J.; Herrington v British Railways Board [1971] 2 Q.B. 107, 125 per Salmon L.J.; Southern Portland Cement Ltd v Cooper [1974] A.C. 623, 642 per Lord Reid; Palmer v Tees H.A. [1999] Lloyd's Rep. Med. 351, 356 per Stuart-Smith L.J.; Van Colle v C.C. of Hertfordshire Police [2008] UKHL 50, [2009] 1 A.C. 225 at [109] per Lord Carswell.

126 See, e.g., Giblin v McMullen (1868) L.R. 2 P.C. 317, 336 per Lord Chelmsford.

127 T. Weir, An Introduction to Tort Law, 2nd ed. (Oxford 2006), 67–68. Other defenders of gross negligence include O.W. Holmes, The Common Law (Boston 1881), 120 (though deprecating its use in jury trials), and N.E. Palmer (ed.), Palmer on Bailment, 3rd ed. (London 2009), para. 10–025. For academic criticism of the concept, see Elliott, op. cit., Wright, op. cit., and Green, F., “High Care and Gross Negligence” (1928) 62 American L. Rev. 545Google Scholar.

128 Law Commission, Trustee Exemption Clauses (Law Com. No. 301, 2006), paras A.43–A.48.

129 Trust Law Committee, Trustee Exemption Clauses (1999), para. 2.8.

130 Scottish Law Commission, Breach of Trust (Scot. Law Com. D.P. No. 123, 2003), para. 3.30.

131 Ibid.

132 Bracton lib. 3, c. 2, 99b. Though Elliott points out that Bracton did not refer in terms either to gross negligence, or to its Roman equivalent, culpa lata: Elliott, op. cit., p. 107.

133 Coggs v Barnard (1703) 2 Ld Raym. 909, 92 E.R. 107; Sir W. Jones, Essay on the Law of Bailments (London 1781); J. Story, Commentaries on the Law of Bailments (Cambridge, Mass. 1832). There are suggestions of a threefold classification of negligence (gross, ordinary and slight) in Coggs v Barnard, though it was only in Jones's Essay that these three degrees of fault were clearly articulated. Jones claimed that Roman law recognised the same three degrees of negligence – culpa lata, culpa levis, and culpa levissima – but it is now generally accepted that culpa levissima was not a separate standard: Elliott, “Degrees of Negligence”, p. 100. On the bailment angle generally, see Elliott, “Degrees of Negligence”, pp. 107–112; D. Ibbetson, “‘The Law of Business Rome’: Foundations of the Anglo-American Tort of Negligence” [1999] C.L.P. 74, 80–84; and J. Getzler, “Duty of Care” in P. Birks and A. Pretto (eds), Breach of Trust (Oxford 2002), 45–50.

134 Charitable Corporation v Sutton (1742) 2 Atk. 400, 405–406; 26 E.R. 642, 644–645 per Lord Hardwicke L.C. Similarly, in Roman law a person who did not benefit from the transaction was liable only for dolus (intentional conduct) or, according to some texts, culpa lata: Buckland, Textbook of Roman Law, p. 556.

135 See Getzler, op. cit., pp. 53–57, who argues that gross negligence at times referred to the breach of a specifically defined duty – such as falling below the standard of one's profession or calling – and that this was “only distantly connected to the plainer meaning of ‘great’ or ‘exorbitant’ negligence”.

136 See Ibbetson, op. cit., pp. 92–95.

137 Hinton v Dibbin (1842) 2 Q.B. 646, 661; 114 E.R. 253, 258.

138 See note 124 above.

139 See Ibbetson, op. cit., pp. 97–98.

140 Cashill v Wright (1856) 6 El. & Bl. 891; 119 E.R. 1096.

141 Blyth v Birmingham Waterworks (1856) 11 Ex. 781, 784.

142 Gross negligence lingered on in the law of bailment, but even there it has now been almost completely abandoned in England, though perhaps not yet in Australia: see Palmer on Bailment, para. 10–008. (I say ‘almost completely’ because of the suggestion that an involuntary bailee of uncollected goods may be liable for damage to them only if grossly negligent: JJD SA v Avon Tyres Ltd (C.A., 23 February 2000) at [54]–[55] per Lord Bingham of Cornhill L.C.J.). In many, if not most, US jurisdictions a gross negligence standard is still applied in cases where the bailment was gratuitous, and for the sole benefit of the bailor: Prosser & Keeton on Torts, p. 210n.

143 In addition to the three causes of the decline of gross negligence identified here, Ibbetson has also argued that the common law's “substantial if ragged abandonment” of degrees of negligence may have been influenced by a similar trend in continental European practice at the time, coupled with revisionist analysis of the phenomenon's Roman law roots: Ibbetson, op. cit., pp. 99–109.

144 “Throughout its checkered career, gross negligence under one form or another has been a series of attempts to express more or less coherently an idea of less care in gratuitous undertakings” (Wright, “Gross Negligence”, p. 213).

145 Ibid., p. 532.

146 See Ibbetson, “The Law of Business Rome”, p. 94 (“the range of meanings was positively anarchic”).

147 Ibid., pp. 94–95; Wright, “Gross Negligence”, passim. See also Palmer on Bailment, para. 10–010 for examples from the law of bailment; and W.R. Cornish et al., The Oxford History of the Laws of England: Volume XII (Oxford 2010), 916 (attorneys' liability). Getzler has argued that sometimes judges used a gross negligence test to “guide juries towards a desired finding of fact” (Getzler, “Duty of Care”, p. 51).

148 M.J. Prichard, Scott v Shepherd (1773) and the Emergence of the Tort of Negligence (London 1976), 29–30. See also Wright, “Gross Negligence”, pp. 230–233; Cornish et al., op. cit., pp. 914–915.

149 (1842) 2 Q.B. 646, 114 E.R. 253.

150 Though it remains the case that damages are available for the wrongful arrest of a vessel only if there was bad faith or gross negligence (see, e.g., The Kommunar (No. 3) [1997] 1 Lloyd's Rep. 22).

151 See, e.g., R. v Adomako [1995] 1 A.C. 171.

152 Road Traffic Act 1988, s. 2A(1) (a person drives dangerously if, inter alia, “the way he drives falls far below what would be expected of a competent and careful driver”).

153 See the Corporate Manslaughter and Corporate Homicide Act 2007, s. 1(1)(b).

154 Crimes Amendment Act 1997 (NZ), inserting s. 150A into the Crimes Act 1961 (NZ).

155 D. Ormerod, Smith & Hogan's Criminal Law, 13th ed. (London 2011), 153. For a defence of the use of a gross negligence standard in crimes mala in se, see Horder, J., “Gross Negligence and Criminal Culpability” (1997) 47 U. Toronto L.J. 495CrossRefGoogle Scholar.

156 Northern Counties of England Fire Insurance Co. v Whipp (1884) 26 Ch. D. 482.

157 [1994] 1 B.C.L.C. 561.

158 See, e.g., the extended discussion of gross negligence in this context in The Hellespont Ardent [1997] 2 Lloyd's Rep. 547, and Camarata Property Inc. v Credit Suisse Securities (Europe) Ltd [2011] EWHC 479 (Comm), [2011] 2 B.C.L.C. 54, where the terms of an agreement to provide investment advice limited liability to cases where the advisor was grossly negligent.

159 See P. Matthews, “The Efficacy of Trustee Exemption Clauses in English Law” [1989] Conv. 42 and (more tentatively) Law Commission, Fiduciary Duties and Regulatory Rules (Law Com. C.P. No. 124, 1992), at 3.3.41; Spread Trustee Co. Ltd v Hutcheson [2011] UKPC 13, [2012] 2 A.C. 194 at [137] per Lady Hale. Cf. Armitage v Nurse [1998] Ch. 241; Spread Trustee Co. Ltd v Hutcheson [2011] UKPC 13, [2012] 2 A.C. 194 at [57] per Lord Clarke, [106] per Lord Mance. The Trustee Act 2000, sched. 1, para. 7 now permits any exclusion of the trustee's duty of care, no matter how sweeping.

160 See Lewin on Trusts, 18th ed. (London 2008), para. 39–124.

161 See Scottish Law Commission, Breach of Trust (Scot. Law Com. D.P. No. 123, 2003), paras 3.13–3.16. See also Trusts (Guernsey) Law 1989, s. 34(7); Trusts (Jersey) Law 1984, art. 26(9).

162 Spread Trustee Co. Ltd v Hutcheson [2011] UKPC 13, [2012] 2 A.C. 194 at [51].

163 Weir, An Introduction to Tort Law, p. 68.

164 Dan B. Dobbs, The Law of Torts (St Paul 2000), 350. On the proliferation of “recreational use” statutes, see Prosser & Keeton on Torts, pp. 415–416, and on degrees of care in US tort law more generally, see Harper, James and Gray on Torts, 3rd ed. (New York 2006) vol. 3, paras 16.13–16.15.

165 US: Prosser & Keeton on Torts, pp. 215–217; Harper, James and Gray, vol. 3, para. 16.15. Canada: MacArthur, W.G., “Gross Negligence and the Guest Passenger” (1938) 60 Can. Bar Rev. 47Google Scholar; Singleton, J.R., “Gross Negligence and the Guest Passenger” (1973) 11 Alta. L. Rev. 165Google Scholar.

166 W. van Gerven et al., Cases, Materials and Text on National, Supranational and International Tort Law (Oxford 2000), 591.

167 See D. Fairgrieve, State Liability in Tort: A Comparative Law Study (Oxford 2003), 106–120.

168 On the decline of faute lourde, see ibid., pp. 117–118.

169 §§ 521, 599 B.G.B.

170 See B.S. Markesinis and H. Unberath, The German Law of Torts, 4th ed. (Oxford 2002), 707–708.

171 For an overview, see C. von Bar, The Common European Law of Torts (Oxford 2000), vol. 2, paras 242–243. Exemption clauses are generally not valid where the harm is caused intentionally or through gross negligence, for example, and where one party (such as an employer or the State) has been held liable for the acts of another (such as an employee or agent), the right of the former to recoup its losses from the latter frequently depends on proof of intention or gross negligence.

172 A.B.G.B., § 1324.

173 O.G.H. 16 May 2001, Z.V.R. 2001/73.

174 Civil Code, art. 168.2.

175 For some of its different meanings, see Getzler, “Duty of Care”, pp. 50–57.

176 Corporate Manslaughter and Corporate Homicide Act 2007, s. 1(4)(b). See also the definition of dangerous driving in section 2A(1) of the Road Traffic Act 1988.

177 Law Com C.P. No. 187, para. 4.145.

178 Weir, An Introduction to Tort Law, p. 68.

179 For “very marked”, see, e.g., McCulloch v Murray [1942] S.C.R. 141, 145 per Duff C.J.; for “major”, see, e.g., the offence of gross negligence manslaughter as defined in the Crimes Act 1961 (N.Z.), s. 150A.

180 Spread Trustee Co. Ltd v Hutcheson [2011] UKPC 13, [2012] 2 A.C. 194 at [117] per Sir Robin Auld. See also at para. [51] per Lord Clarke (“To describe negligence as gross does not change its nature so as to make it fraudulent or wilful misconduct”).

181 Ibid., at para. [117] per Sir Robin Auld.

182 See Fairgrieve, State Liability in Tort, pp. 113–114.

183 Text at note 70 above.

184 See text following note 212 below.

185 Nolan, D., “Deconstructing the Duty of Care” (2013) 129 L.Q.R. 559Google Scholar.

186 Qualcast (Wolverhampton) Ltd v Haynes [1959] A.C. 743 is the leading authority.

187 Weir, An Introduction to Tort Law, p. 55.

188 Hence the criticism of the shift of focus from duty to breach in the occupiers' liability context on the grounds that it made the outcome of disputes less predictable and would therefore lead to an increase in litigation: Smith, J.C. and Burns, P., “Donoghue v Stevenson: The Not So Golden Anniversary” (1983) 46 M.L.R. 147CrossRefGoogle Scholar, 162.

189 [1999] 1 F.L.R. 193.

190 Ibid., pp. 232–233.

191 X (minors) v Bedfordshire C.C. [1995] 2 A.C. 633.

192 Z v United Kingdom (Application no. 29392/95) (1999) 28 E.H.R.R. C.D. 65 at para. 114; TP and KM v United Kingdom (Application no. 28945/95) at para. 91.

193 [2001] Fam. 313, 338.

194 Barrett v Enfield L.B.C. [2001] 2 A.C. 550, 557–558. See also the remarks of Lord Slynn in Barrett at pp. 574–575, in Waters v Commissioner of Police of the Metropolis [2000] 1 W.L.R. 1607, at pp. 1613–1614, and in W v Essex C.C. [2001] 2 A.C. 592, at 598; Godden v Kent & Medway S.H.A. [2004] EWHC 1629 (QB), [2004] Lloyd's Rep. Med. 521; and Brooks v Metropolitan Police Commissioner [2005] UKHL 24, [2005] 1 W.L.R. 1495 at [3] per Lord Bingham. Cf. Kent v Griffiths [2000] Q.B. 36, 51 per Lord Woolf (if the legal position is clear, and an investigation of the facts would provide no assistance, then courts should still dismiss claims which have no real prospect of success).

195 C.P.R. 24.2. Summary judgment will be given against a party only if the court considers that that party has no real prospect of succeeding, and there is no compelling reason why the matter should be disposed of at a trial. Although summary judgment procedures pre-date the C.P.R., they were previously available only to claimants.

196 C.P.R. 24.5. The applicant can rely on any written evidence contained in her statement of case or application notice, or in a witness statement, but oral evidence cannot be adduced unless the court allows it (C.P.R. 32.6).

197 [2001] Fam. 313.

198 See Booth and Squires, The Negligence Liability of Public Authorities, para. 4.94.

199 See Goldman v Hargrave [1967] 1 A.C. 645, 663 per Lord Wilberforce; British Railways Board v Herrington [1972] A.C. 877, 898–899 per Lord Reid, 936 per Lord Diplock; Southern Portland Cement Ltd v Cooper [1974] A.C. 623, 642 per Lord Reid.

200 See text following note 113, above.

201 See Stovin v Wise (Norfolk C.C., third party) [1996] A.C. 923, 933 per Lord Nicholls; J. Kortmann, Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio (Oxford 2005), 77.

202 Cane, The Anatomy of Tort Law, p. 43.

203 See Bowman and Bailey, “Negligence in the Realms of Public Law”, 303. In France, where criminal sanctions attach to those who fail to assist others, the standard is set very low: see F.H. Lawson and B.S. Markesinis, Tortious Liability for Unintentional Harm in the Common Law and the Civil Law (Cambridge 1982), vol. 1, 74–75.

204 Fairgrieve, State Liability in Tort, p. 50. See also B.S. Markesinis et al., Tortious Liability of Statutory Bodies (Oxford 1999), p. 121; Crimmins v Stevedoring Industry Financing Committee (1999) 200 C.L.R. 1 at [87] per McHugh J.; and S.H. Bailey and M.J. Bowman, “Public Authority Negligence Revisited” [2000] C.L.J. 85, 130 (by acknowledging that the discretionary nature of the decision-making in question should rightly be taken into account at the breach stage, Lord Hutton in Barrett provided “clear testimony to the flexibility and sophistication of the breach of duty mechanism”).

205 Compare Stapleton, J., “Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence” (1995) 111 L.Q.R. 301Google Scholar, favouring duty limits, and Howarth, “My Brother's Keeper?”, favouring a breach approach.

206 Indeed, Lord Goff's analysis in Smith v Littlewoods is a classic example of this kind of duty reasoning.

207 JD v East Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 A.C. 373. On the conflict of interest argument more generally, see Oliphant (ed.), The Law of Tort, para. 17.22.

208 Handley, E., “Sullivan v Moody: Foreseeability of Injury is Not Enough to Found a Duty of Care in Negligence – But Should it be?” (2003) 11 Torts L.J. 1, 9Google Scholar. Another commentator apparently sympathetic to such an approach is Bailey, S., “Public Authority Liability in Negligence: The Continued Search for Coherence” (2006) 26 L.S. 155, 181–182Google Scholar.

209 JD v East Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 A.C. 373 at [49].

210 “It should be no easier to succeed here than in France or Germany” (ibid.).

211 [2007] EWCA Civ 446, [2007] 1 W.L.R. 2991 at [50] per Auld L.J. See also JD v East Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 A.C. 373 at [137], where Lord Brown specifically rejected the adjustment of the standard of care as a response to the concern in this type of case.

212 See Oliphant (ed.), The Law of Tort, para. 17.20.

213 For the view that in conditions of uncertainty, a gross negligence standard may generate much the same incentives as would be generated by an ordinary negligence standard in the absence of uncertainty, so that if uncertainty is unavoidable a gross negligence standard may be preferable to an ordinary negligence standard in deterrence terms, see Craswell, R. and Calfee, J.E., “Deterrence and Uncertain Legal Standards” (1986) 2 Journal of Law, Economics and Organisation 279, 285Google Scholar.

214 Fairgrieve, State Liability in Tort, pp. 115–116; Markesinis et al., The Tortious Liability of Statutory Bodies, p. 53.

215 Craig, “Once More Unto the Breach”, 72.

216 See Nolan, D., “The Liability of Financial Supervisory Authorities” (2013) 4 Journal of European Tort Law 190, esp. 200–203Google Scholar.

217 See F. Rossi, “Tort Liability of Financial Regulators: A Comparative Study of Italian and English Law in a European Context” [2003] Eur. Bus. L. Rev. 643, 671; A.P. Scarso, “Tortious Liability of Regulatory Authorities”, in H. Koziol and B.C. Steininger (eds), European Tort Law 2005 (Vienna 2006) 102, 116.

218 See text at note 167 above. This would also appear to have been the motivation for the use of a gross negligence standard in section 43A of the Civil Liability Act 2002 (New South Wales) to protect those exercising “special statutory powers”, such as doctors performing certification roles under mental health legislation: see Aronson, “Government Liability”, 78.

219 Hence the irony that, while the French faute lourde standard was initially welcomed by liberal commentators as a tool with which to chip away at the immunity of the administration, in recent years it has come under attack as an unnecessary limitation on the state's liability: Fairgrieve, State Liability in Tort, p. 114.