![]() Negligence is the breach of an owed duty by means of an act or omission in the prevention of harm that results in damages. This essay seeks to discuss the objective standard of care imposed at the breach stage in general negligence and why the court generally imposes such. It will clearly analyse circumstances where the court was influenced to adopt the subjective standard; ultimately concluding that the approach taken by the court should be amended since it is often based on policy and principle for the benefit of the claimant; it can be said that as opposed to achieving corrective justice the court occasionally elevates the function of tort as a compensation mechanism. Breach occurs if the defendant does something or omits to do something a reasonable man would have done[1]. The court asks two questions when considering whether a breach occurred: theoretically in law, what should the standard of care be, and whether the defendant has fallen below that standard. As seen in Donoghue v Stevenson [1932][2], the standard of care is not a standard of perfection; per Lord Atkin’s statement, the key requirement is that of reasonableness. The reasonable man test was emphasised by Baron Anderson in Blyth v Birmingham Waterworks Co. [1856][3]. Many cases have sought to define the reasonable man over the years, they are ‘the man on the Clapham omnibus’[4], ‘the anthropomorphic conception of justice’[5] and ‘a traveller on the London underground’[6] After many definitions (and debates by feminists), it is agreed that the reasonable man is the hypothetical average person, this person is not all knowing, they occasionally take risks and make mistakes. Realistically, the objective standard is not one of perfection[7]. The test of objectivity begs the question of what the reasonable man would do in such circumstances. This ultimately means that the standard of care is not dependent on the defendant’s personal idiosyncrasies, characteristics, or capabilities[8]; the courts will rarely impose a lower standard. This is illustrated in Nettleship v Weston [1971][9] where a learner driver accompanied by a driving instructor brake too slowing causing the vehicle to collide with a lamp-post. The claimant, consequently suffered a broken knee and sued for damages. It was held that the learner driver owed the standard of a reasonably competent driver. It would be opined that the approach taken by the court is claimant-centred, Lord Justice Salmon stated that any driver normally owes the same standard to a passenger in their car as they do to the public, i.e. the public views anyone driving as a ‘reasonably competent driver’ regardless of their experience, thus, any person should be held at such. Behind the rulings of this case, policy decisions, such as insurance, was also considered. The courts typically impose the reasonable man test because Per Cane (p 49), the ‘objective standard of care is understood as the law’s attempt to strike a fair balance between the competing interests in freedom of action and personal security that we all share’. This approach moved away from the concept that there should be no liability without fault and adopted the question of whom the risk should fall on. This concept was taken to the extreme in Roberts v Ramsbottom [1980][10] regarding the defendant under disability due to suffering a stroke while driving and consequently knocked down a pedestrian. The defendant was liable because he had some degree of control. However, in Mansfield v Weetabix Ltd [1998][11] the defendant was not liable because despite him suffering a hypoglycaemic attack causing him to black out while driving and crashing into the claimant’s shop, he was not aware of his disability. This case is a prime example of the courts ‘modifying’ the objective standard to include certain subjective characteristics of the defendant. Considering this, circumstances the court would apply subjective elements to breach in general negligence are to be examined. Individuals’ expertise may be considered based on facts of each specific case. Occasionally, a person may not be judged as a ‘reasonable average person’ but rather that of a ‘reasonably competent hypnotist-entertainer’[12], a ‘reasonably competent jeweller’[13], a ‘reasonably competent amateur home do-it-yourself’[14] or even an expert. As seen previously[15] trainees are not held at a lower standard by the courts for their actions, it was emphasised in Wilsher v Essex AHA [1988][16] that the act not the actor would be judged. Whereas, professionals assume a test with a combination of objectivity and subjectivity, this is regarded as the ‘Bolam test’[17], it asks what the reasonable man would do as compared to a professional. This test does not necessarily a majority who would’ve acted in that manner but rather if the defendant can find at least one professional in their same field of expertise who would’ve also acted as such. This application of subjectivity is necessary because the courts need to establish whether the act was reasonable and logical.[18] It was decided that concerning the expert opinions a balance was necessary to prove undue deference. Subjectivity regarding children is resoundingly blatant as the courts are aware that children may not have the required capacity to acknowledge the dangers of certain actions or omissions. In the recent case of Orchard v Lee [2009][19], a young boy ran into a dinner lady and managed to injure her. The court compared the action of the child with other children of similar age and experience, concluding that his actions met the standard of a reasonably competent 13-year-old, instead of a reasonably competent ‘adult’. Mullins and Richards [1998] [20]also had a similar ruling, it was held that teenage girls sword fighting with a ruler is usual behaviour of a 15 year-old child. One of the cutting-edge defences used by defendants is that they did not know of the risk at the time of the incident. In Roe v Minister of Health [1954][21] claimants from 1947 became permanently paralysed after being given contaminated anaesthetic with a sterilising fluid for a minor operation. The hospital was unaware that the storage procedure of the anaesthetic had contaminated them and they continued storing it in that manner. In the case Lord Denning said that the doctor was unaware there could be undetectable cracks, … it was not negligent for him not to know it at that time, and that the court should not look at the 1947 accident with 1954 spectacles. Similarly, in Maguire v Harland & Wolff [2005], in the time of cancer when the defendants did not know much about mesothelioma, the same judgement was applied. The court recognised that it would be unfair to hold a defendant liable for something they were not aware of. These cases show a clear example that the objective standard was not achieved; it can be considered that the attempt of the court to distance themselves from the idea that no fault results in no liability was fatal, as this precedent took a spin and is now ‘no knowledge at time of fault equals no liability’. While the defendant would be relieved of liability for being unaware of certain factors at time of incident, a higher standard would be imposed if the claimant is known to have certain disabilities. Both Paris v Stephney BC [1951] [22]and Haley v LEB [1964] [23]the claims were in relation to blindness and they succeeded since defendants should have done something to prevent further injury, or injury towards them. As previously established mentally or physically disabled defendants would only be liable if they were aware of their condition and took the risk anyways. That is, a reasonably competent individual would not have acted in a certain way given their disabilities.[24] A defendant may or may not be liable for the claimant’s injuries due to intoxication. In Griffiths v Brown [1998] [25]a taxi driver was found to be not liable when he ran over a drunk passenger after they got out of the vehicle. Whereas in Brannan v Airtours plc [1999][26] the court decided that if the defendant is responsible for the claimant’s state or if there are elements of contributory negligence then they are liable. In this case Reps. Encouraged the claimant, who was on a package vacation in Greece, to consume a large quantity of alcohol. The claimant got up in a drunken state and walked on a table subsequently seriously injuring himself on a ceiling fan. One of the things the court look for is a link either geographically or relationship wise to determine whether the defendant could have influenced the claimant to consume so much alcohol as to impair their mental stability which results in damage or injury. The courts there examine the actions of the defendant to impose liability. In Watt v Herts County Council [1954] [27]a fireman was injured by equipment packed loosely in a fire truck during an emergency call. It was held that the standard of care expected is much lower if the defendant is responding to an emergency. During emergencies it is understood that the mental capacity of an individual may not be the most sound, the court takes these factors into consideration In sports, the standard is not just of a reasonably competent player but a player who is in compliance with the rules and regulations of the specific sport. In Condon v Basi [1985] [28]a foul during a game of football resulted in a broken leg. The claimant was able to sue because the defendant needed to exercise a degree of care towards other players. Regarding sports, the courts examine the actions of the defendant; this is because liability can not be imposed unless the player acted out of their bound. It can be opined that modern lawyers fail to comprehend what a principled account of the law would be like since the reliance on policies in tort has become ubiquitous. One of the major downfalls of the objective standard is the exclusion of the principled corrective justice. The purpose of corrective justice is to have a defendant compensate the claimant for the damages they caused due to their fault, it does not necessarily dictate that an individual should compensate another for all damages, even those not caused by them. In cases such as Nettleship v Weston where there is no genuine culpability on the part of the defendant, liability should not be imposed. This opens the door to arguments of unequitable outcomes in the law of tort. Considering the morality of the case, the learner driver was not at fault, however since this was a case regarding a car accident, the court identified that she would be liable due her being insured. One of the defences attempted to be introduced by the defendant was ‘volenti non fit injuria’ which means that injury is not done to a willing person. The court also shut down this argument since it was stated that an expressed or written contract was not implemented to support it. Despite these observations above, it can be noted that the approach taken by the court is pragmatic and comprehensive. In cases such as Nettleship which include roadside accidents, the courts ruled where the financial burden fell neither on the defendant nor the claimant, but rather the insurance company. Thus, introducing the implementation of policy as a measure of compensation, has ultimately achieved distributive justice, economic efficiency and social morality. In Griffiths v Brown the court also came to a policy decision as it would not have been reasonable for a taxi driver to determine how drunk each passenger was; this case prevented the metaphorical floodgates. However, Burrough J in Richardson v Mellish[29] had a much different opinion with regards to this, he stated that public policy is a very unruly horse, and when once you get astride it you never know where it will carry you. It is unclear why a specific test (Bolam test) inclusive of subjectivity was applied to professionals but not to trainees. It is upon the defendant (a professional) at fault to prove that if another professional was in the same situation, they would do the same; while there is no discount for a trainee. The question also arises as to why a trainee doctor or trainee driver is held to the standard of a reasonably competent driver or a reasonably competent doctor when they clearly lack the experience. While the introduction of subjectivity to the law of negligence has been beneficial to individuals in special circumstances such as children, those mentally or physically disabled and emergencies it is opined that the law should stretch as far to include trainees. It is believed that the law is incoherent with regards to the statement of the ‘act not the actor’[30] especially since the court moved away from the objectivity and introduced subjective elements of the actor, e.g age and mental or physical capacity. The approach taken by the courts is almost completely claimant-centred with dashes of morality, it uses subjectivity with strict limitations in hopes of achieving a means of compensation; this should be changed. [1] Hazell v British Transport Commission [1958] at 171. [2] Donoghue v Stevenson [1932] Lord Atkin at 580, “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”. [3] Anderson B, Blyth v Birmingham Waterworks [1856] at 784. [4] Greer LJ, Hall v Brooklands Auto-Racing Club [1933] at 224 [5] Lord Radcliffe, Davis Contractors v Fareham Urban District Council [1956] at 728 [6] Lord Steyn, McFarlane v Tayside Health Board [1999] at 82 [7] Birch v Paulson [2012] [8] Glasgow Corporation v Muir [1943] at 457; Bradford-Smart v West Sussex County Council [2002] [9] Nettleship v Weston [1971] 2 QB 691 [10] Roberts v Ramsbottom [1980] [11] Mansfield v Weetabix Ltd [1998] [12] Gates v McKenna [1998] [13] Philips v Whiteley [1938] [14] Wells v Cooper [1958] [15] Ibid 9 [16] Wilsher v Essex AHA [1988] [17] Bolam v Friern Hospital Management Committee [1957] [18] Mulheron 2010, p613 [19] Orchard v Lee [2009] [20] Mullins v Richards [1998] [21] Roe v Minister of Health [1954] 2 WLR 915 Court of Appeal [22] Paris v Stephney BC [1951] [23] Haley v LEB [1964] [24] Ibid 10 & 11 [25] Griffiths v Brown [1998] [26] Brannan v Airtours plc [1999] [27] Watt v Herts County Council [1954] [28] Condon v Basi [1985] [29] Richardson v Mellish [1824] 2 Bing 229, 130 ER 294, 303. [30] Ibid 13
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