When standard of care.[4] There is an expectation

When setting
the standard of care against which the accused’s actions are measured at the breach
stage of a General Negligence claim, the courts will almost certainly impose
what is recognised as the ‘objective standard’ on that individual. This paper is
to critically analyse this statement with emphasis on the court’s application of
the standard of care and will address the following. This paper will first
outline the ‘objective standard’ and suggest why the courts favour its application
when determining the standard of care. Secondly, the variations of this standard
will be explored, in particular to circumstances that require a subjective approach.

The necessity of this standard will be presented subject to cases concerning
children and those professing to a professional standard. A fundamental issue
to address is whether negligence should be defined objectively or subjectively.1 As
the ‘objective standard’ is a prominent ruling within the law of Tort, it must
be questioned as to what extent this approach adopted by the courts is suitable
when determining the standard of care. After critically evaluating both applications of the courts, this paper
will agree with the objective approach but will acknowledge its weaknesses and
that particular situations require a subjective assessment.

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To
determine whether a defendant has fallen below the standard of care, the courts
will impose what is known as the ‘objective test’. When setting this standard,
the courts will compare the actions of a defendant to those of a ‘reasonable
person’. This can be best explained by Baron Alderson in Blythe v Birmingham2 where
‘Negligence is the omission to do something which a reasonable man would do or
doing something a reasonable man would not do’.3 Though this statement implies the
availability of negligence as an action, the ‘reasonable man’ test has been
adopted as a basis for determining the appropriate standard of care.4 There is
an expectation of defendants to act in accordance with this hypothetical reasonable
person, however negligence will arise if one has not met this standard, or has
failed to do rather what the reasonable person would do. Therefore,
this ‘objective standard’, relative to an individual’s conduct within society,5 is
synonymous with the reasonable person standard.

 

An
initial interpretation of the ‘reasonable man’ was denoted by Sir Richard Henn
Collins as ‘the man on the Clapham omnibus’6 although a more contemporary approach by
Lord Steyn would be ‘travellers on the underground’ as discussed in McFarlane v Tayside Healthboard.7

It
must be noted that this objective test, established in Vaughn v Menlove8, does not consider an individual’s personal
idiosyncrasies.9 Suggestively, the courts will  focus on the expectation of a reasonable
person when conducting a specific action or activity, therefore, in order to
establish this standard judges may look to the ‘act and not the actor’ as applied
in Wilsher v Essex10
where the actions of a junior doctor’s were held to the same standard of a
qualified doctor. However, we must recognise that this is not a standard
of perfection as on occasion, a reasonable person would make errors for
instance in Birch11,
the defendant was not liable for the injuries suffered by an intoxicated
pedestrian who stepped out in front of their car.

 

Now
that this standard has been outlined, we must consider the applications of this
test. A notable case to consider is Nettleship
v Weston12
where a driving instructor had been injured where the learner-driver had
negligently crashed. A question that was presented before the courts was
whether the standard of care lowers for learner drivers. Lord Denning stated,
“his incompetent best is not good enough. He must drive in as good a manner of
skill, experience and care”13.

Therefore, the standard of care expected is the same as that required by a
qualified driver. Similarly, a householder conducting repairs in their
residence must not fall below the standard to be expected of a reasonably skilled
carpenter14
as upheld in Wells v Cooper15. Where liability is imposed on a
defendant, this test insists that the
actor must be held liable where he fails to meet an objective, ideal standard
as implied by these authorities.16

 

The
courts tend to adopt this objective approach due to its uniformity17 as
a standard that has measured the conduct of defendants over one-hundred-and-fifty
years18. Reasons
why the courts favour this approach will be explored. Firstly, the courts may impose
this standard as it ensures fairness. Lloyd LJ in Telnikoff19 implied the necessity for the
application of this standard where ‘fairness is objective and is for the
defendant to establish…lack of honest belief is subjective’.20
Where a defendant’s comment is fair by objective test, this portrays an honest
expression of their conduct. Additionally, the courts may impose this standard
is it would be time consuming to determine the relevant capacities of every
defendant. Moreover, there is difficulty to tailor the notion of reasonable
care to the personal capabilities of every defendant. Thus, the courts may tend
to impose this standard as it is not time constraining.

 

 

 

 

 

 

 

 

 

It
is apparent that the objective standard will most commonly be imposed when setting
the standard of care. Nevertheless, on occasion, the courts will modify this
standard where certain circumstances of particular defendants will be considered,
thus deviating from the traditional approach.21 Exceptions
are created for those who generally will be held to the subjective standard of
a reasonably careful person with the same physical and mental capacities that
in actuality are possessed by a particular defendant.22 A subjective approach was considered
in Mansfield23 which
recognized that some situations require a focus on certain characteristics of particular
defendants. Consequently, this standard will exonerate the actor whose abilities are less than
those of the universal norm if the actor measured up to his own lesser
potential while causing an injury.24

 

An exception arises when the
defendant is a child. As a general rule, children are held to a
partly subjective standard that not only focuses on the ‘reasonable prudent child’
but somewhat to a reasonable child of ‘similar age, ability and intelligence’.25 A reasoning for measuring a
child’s conduct by this varying standard instead of the reasonable person test arises
from the basic unfairness of predicating legal fault upon a standard which most
children are incapable of meeting. Thus the standard of care is lowered.26 In McHale v Watson27, a
12-year-old-defendant had thrown a metal rod at wood where it rebounded and injured
the claimants eye, causing blindness. What standard should the child be held
to? Owen J expressed that “the standard of a child’s conduct should be measured
that reasonably to be expected of a child of the same age, intelligence and
experience”, thus imputing a subjective component here.28

 

A current
case to consider is Orchard v Lee29 where
a 13 year-old-boy had collided with the claimant whilst playing with another
child. The qualities of knowledge and experience of
children are individualized-subjective but only for the purpose of establishing
whether or not the child was able to identify the risk of injury to himself and
to avoid danger. Outside this, there is an objective standard.30 In
circumstances as such, a subjective element can be noted as the courts will
scale the standard according to the age of that child. Although this remains a
purely objective test, we can see the modification of the objective test whereby
subjective qualities such as age and knowledge may be taken into account when measuring
the conduct of minors.

 

Another exception to consider are
defendants who are held to a professional standard. If
a defendant exercises a skill and is one the reasonable man does not possess,
the courts will modify the objective standard. Actions of these defendants are
measured against those of an ordinary skilled man professing to exercise that
skill, hence they are bound those of a reasonable practitioner of that skill.31 In the
assessment of medical negligence, the test for the standard of care expected of
doctors is based on the principle enunciated in Bolam.32 A
question presented before the courts was whether treatment had been
administered correctly to the patient along with which standard of care that should
be imposed. McNair J directed the jury that “a medical professional is not
guilty of negligence if he has acted in accordance with a practice accepted as
proper by a responsible body of medical men skilled in that particular art”.33
Otherwise, the defendant will not be in breach of their duty if they have acted
accordingly as held here that the professional had acted in accordance with
this practice. According to Brennan, this principle contains both subjective
and objective elements where the test subjectively looks to the skill of an
ordinary man professing to exert this skill.34

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

There
has been conflicting views between the objective and subjective standards as to
the sufficiency in its applications within the courts.35 In
response to the last issue, this paper agrees with the objective approach to a sufficient
degree, nevertheless, this approach has its weaknesses as this ‘uniform’ standard
is one that is not perfect.

 

The objective standard of care has
been subject to criticism within academic literature where it has been noted to
be a ‘conceptually unsound in a fault-based liability system’.36 Those
in objection of this approach may argue that harsh decisions that have arisen,
thus contradicting the idea of it ‘fairness’. If we consider the decision held
in Nettleship37,
it is evident that a learner driver is unable to reach the standard of care to
which they were held. From this decision, the use of this
uniform, reasonable person standard may create some genuine inefficiencies, along
with unfairness it might entail38. In
turn, some may propose that the subjective test should be maintained instead
due to its flexibility within the courts. A subjective assessment may suggest
that certain defendants when determining the standard of care, will not be
unduly penalized when determining the standard of care, again will not produce
harsh decisions.39
However, a subjective approach makes such security impossible, “since the risks
to which one could permissibly be exposed by others would depend on the
subjective capacities of the particular others with whom one happens to
interact”.40
Therefore, this paper upholds necessity of the objective standard alone if our
expectations are to be sufficiently secure.

 

Moving
on to the positive aspects of this approach, it standardizes how citizens of
our society are expected to behave and excel, upholding the objective application
to the courts and comports with a
generalized conception of liberty and security for all persons.41 Thus we
can see this approach enables tort law to ensure certainty to reinforce the
rules of conduct. Furthermore, this there is standard of conduct whereby
citizens are expected to strive to meet the criteria of a reasonable person. The
courts intend for all to satisfy the reasonable person, hence upholding the law
where there is a necessity of establishing a generalised standard. To further
support this notion, Cane suggests that the courts will continually impose this
standard as it is an attempt to strike a fair balance between competing
interests in freedom of action and personal security we share.42

 

To
refute the idea of its harshness, we can justify the decision in Nettleship as a practical justification was
offered by Lord Denning MR “the injured person can recover damages from an
insurer only if the driver is liable in law. So the judges must see to it that he
is liable unless he can prove care and skill of a high standard. “On whom
should the risk fall?”. Although the learner is not at fault in a moral sense,
they are legally liable due to their insurance whereby the risk is imposed.43

 

We
can see that both approaches have strengths and weaknesses however within
negligence cases both the objective and subjective standards have the same
purposes: those members of a population who engage in an activity should be
those who should engage in the activity, and they should exercise what is for
their optimal care.44

 

In
conclusion, this paper has outlined the ‘objective standard’ along with its
purposes within the courts and its modifications, giving rise to a subjective
assessment on negligence.

In
concluding the final argument, the objective approach to determining the
standard of care remains to be a fundamental and vital test to the current
application and is sufficient to a high extent, however certain scenarios which
require a subjective approach, relating to other cases, should be also met. The
current system adopted by the courts where both standards are imposed is satisfactory
within cases of general negligence

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1 WF Schwartz, ‘Objective and Subjective Standards of
Negligence: Defining the Reasonable Person to Induce Optimal Care and Optimal
Populations of Injurers and Victims.’ (1989) 78(2) Geo L J 241

2 Blyth v Birmingham Waterworks Co. 1856 11 Ex Ch 781

3 Ibid 2; 784

4 Wendy Bonython The standard of care in
Negligence. Canberra
Law Review (2011) Vol. 10, Issue 2,

5 Rachael
Mulheron Principles of Tort Law (CUP, 2016)

6 McQuire
v Western Morning News 1903 2 K.B. 100 at 109

7 1999
Lord Steyn; 82

8
1837 3 Bing NC 467

9 Glasgow Corporation v Muir 1943 AC 448; 458 – ‘the objective standard ‘eliminates
the personal equation
and is independent of the idiosyncrasies of
the particular person whose conduct is in question’.

 

 

10
1988 1 All ER 871

11 Birch v Paulson 2012 EWCA Civ 487

12
1971 3 All ER 581

13 Ibid 12

14
Giliker and Beckwith. Tort Law (4th
Edition, 2011) p.152

15 Wells v Cooper 1958 2 All ER 527

16 Ibid
25

17 Joseph
H. King, Jr., Reconciling the Exercise of Judgment and the Objective
Standard of Care in Medical Malpractice, 52 OKLA. L. REV. 49, 49 (1999).

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

19 Telnikoff
v Matusevitch 1991 1 QB
102

20 Ibid
15 Lloyd LJ; 115

21 WE
Peel and James Goudkamp, Winfield & Jolowicz on Tort (19th
edn, London, Sweet & Maxwell, 2014) at p 146 6-010)

22 See
RESTATEMENT (SECOND) OF TORTS §§ 283–283 C, 289(a) & cmt. n, 290 (1965);

PROSSER & KEETON,
supra note 1, at 169, 173–76, 179–82; Bernstein, supra note 34, at 745–47.

23 Mansfield
v Weetabix 1997 EWCA Civ 1352

24 Anita Bernstein. The Communities That Make Standards of Care Possible. 77 Chi.-Kent.

L. Rev. 735 (2002).

25 Teller
Books. Torts: Outlines and Case Summaries 3rd edition (2012)

26 David E. Seidelson. Reasonable Expectations and Subjective Standards in Negligence. Law
50 Geo. Wash. L. Rev. 17 (1981)

27
1966 HCA 13

28 Ibid 5

29 2009
EWCA 295.

30 Harry
Schulman. Standard of Care Required of
Children. (1928). Faculty Scholarship Series. Paper 4596

31 https://issuu.com/independentcollegedublin/docs/tortsampleshapter

32 Bolam
v Friern Hospital Management Committee 1957 1 WLR 583 

33 Ibid 32 at 118

34 Carol
Brennan Tort Law Concentrate (OUP,
2017)

35
Ibid 1 – where some may support
the idea of fairness to individual negligence tort, whereas others may look to
the safety of negligence tort and the broader public

36
James B. Ellis, Tort Responsibility of Mentally Disabled Persons, (1981)

37  Ibid 11

38
Jeffrey J. Rachlinski, Misunderstanding
Ability, Misallocating Responsibility, 68 BROOK. L. REV. 1055, 1057 (2003) (“The
reasonable person test may produce inconsistent outcomes with ordinary notions
of justice and fairness.”).

39 V.H.

Harpwood Modern Tort Law (Taylor & Francis Group e-Library, 2009)

40 David G.

Owen. Philosophical
Foundations of Tort Law (OUP, 1995)

41
Jules L. Coleman, Legal Theory and Practice, 83 GEO. L.J. 2579, 2603-04 (1995)

42 Kirsty
Horsey & Erika Rackley. Tort Law
5th edn. (OUP, 2017) p.217. Cane pg. 49

43 https://revisionworld.com/a2-level-level-revision/law-level-revision/civil-liability/road-traffic-accidents

44 ibid 1

x

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