Essay: The tort of negligence / standard of care

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  • The tort of negligence / standard of care
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In order to critically discuss the standard of care as it relates to the tort of negligence I will focus particularly on who the ‘reasonable person’ is in the eyes of the law, and separately evaluate what is meant by ‘in the circumstances’. I will also examine the position the courts take in relation to these elements, to what extent the standard is objective, the advantages and disadvantages of this, and how this may affect liability.


The tort of negligence as firstly established by Lord Atkin through the ‘neighbour principle’ in the case of Donoghue v Stevenson , laid out that we owe a general duty of care to those around us. It is described by Alderson B as: “[T]he omission to do something which the reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do (…)”. This supports that the standard of care is considered to be the “reasonable person in the circumstances”. The burden of proof required is “on the balance of probabilities”, therefore, the claimant must show that the likelihood that the defendant committed the tort is above fifty percent.

The scope of liability for negligence is controlled by the courts through various requirements (the standard of care being one) that a claimant will have to overcome in order to bring a successful action which aims for a just outcome and combats so -called ‘compensation culture’. In order to successfully establish negligence certain requirements must be fulfilled, such as, that the claimant suffered harm, the defendant owed the claimant a legal duty of care and that duty of care was breached, which in turn caused harm to the claimant.
Once a claimant has shown they fulfil the preliminary requirements to bring an action, it must then be shown that the defendant did not meet the appropriate standard of care as established by the law and that this breach of duty caused the harm or loss to the claimant.

The ‘reasonable person’

The standard of care is one of the elements required in order to form an action in negligence. As it relates to the tort of negligence the standard of care is said to be “that of a reasonable person in the circumstances” and not a strict liability standard of perfection. Vaughan v Menlove established that the test for standard care should be objective and “adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe”, as if it were not, liability for negligence could be “as variable as the length of the foot of each individual” . By this logic it seems that the standard of care in being objective should aim to give certainty to the way that cases are dealt with and limit the likelihood that a Pandora’s box of negligence claims be brought before the courts. However, it is evidenced through caselaw that outcomes can “turn on the facts at hand” , thus, it can be hard to decipher a pattern when it comes to cases where the standard of care is a contested issue. Although it appears that the objective test may aim to give uniformity this is perhaps not actually achieved due to the different factual matrices in negligence cases.
The general application of the standard of care does not consider the state of mind or personal characteristics but rather the ‘quality of conduct’ by the defendant; it must amount to that of the ‘reasonable person’ to avoid liability. The case of Nettleship v Weston sets the precedent of the application of the ‘reasonable person’ standard. At first glance this application of the law may seem quite harsh, however, this may be undercut by the fact that the insurance company would bear the financial impact of the decision along with the contributory negligence of the instructor. In this respect L.J. Megaw’s policy based reasoning seems logical as he explains why the defendant shouldn’t be held to the standard of a ‘reasonable learner driver’, in order to safeguard the general public and give an underlying order to the law ‘preferable to the vagaries of a fluctuating standard.’ It appears, as Lord Denning notes “[W]e are, in this branch of the law, moving away from the concept: ‘No liability without fault’. We are beginning to apply the test: ‘on whom should the risk fall’ which is later evidenced by the decision in Roberts v Ramsbottom. This provides a good example of the courts applying the ‘general’ standard of care and the strict liability that can result from it.

(i) Knowledge and medical incapacity

The extent to which the courts are willing to regard other external factors will now be discussed in relation to the ‘reasonable person’ and how this can affect the outcomes of cases. The later judgement in Cook v Cook raised questions on the merit of the approach in Nettleship , on the grounds, that social policy is a matter for the legislature and not for the courts. This demonstrates a desire for some form of moral culpability to fall below the standard. This is further evidenced by the case of Mansfield v Weetabix which can be distinguished from Nettleship on the basis that courts took into consideration elements of the defendant’s physical capacity and his lack of knowledge in regard to it. Perhaps this highlights a willingness by the court to apply the standard of care less harshly when adjudicating the ‘reasonable person’ in order to yield a just outcome. It could be argued that the cases contrast on the facts; the former deals with illness, the latter, with incompetency, and this is why the outcomes differ. By contrast, when we look at the more recent case of Dunnage v Randall , the Court of Appeal refused to take the defendants mental incapacity into consideration when deciding if he had fallen below the standard of ‘the reasonable person’. This compares to Nettleship on the basis that insurers would bear the compensation. R. Kidner commented that “[i]f the contest is between two ‘innocent’ and uninsured parties, the traditional ideas of fault are more likely to be resuscitated.” This theory is persuasive, as this recent case may demonstrate that the courts are more likely to strictly impose the objective ‘reasonable person’ standard to balance the interests of the morally innocent defendant and the claimant who has suffered damages, if the defendant is insured.

The subjective element of age is objectively considered to set the standard in certain situations. A clearer example of where the law can be seen to consider a defendant’s personal characteristics is seen in cases involving a child defendant who may lack the knowledge to demonstrate the standard of ‘the reasonable person’. It is hard to argue that children should be held to a higher standard, but perhaps these cases nevertheless give child defendants the opportunity to plea innocence where they may be morally culpable.

It is important to note that in the courts ‘the reasonable person’ relates to the defendant and stems from the gendered term of ‘the reasonable man’. This has given rise to feminist criticisms that this ‘person’ has been conceptualised through the eyes of a non-democratically elected, white, male dominated judiciary and furthermore, a more general critique that it overlooks an increasingly diverse society. A more intersectional approach is advocated by Conaghan . This is a valid criticism to consider when discussing to what extent the standard of care is that of the ‘reasonable person’. I believe this criticism may become less relevant with the passage of time as there appears to be a recognised need for a more diverse judiciary. However, it could possibly be recognised when contrasting the cases of Mullin with Blake v Galloway where the behaviour of the female child defendants is classified as ‘irresponsible’ whereas that of the male child defendants is deemed to be ‘horseplay’ perhaps this illustrates how even a slightly varying standard invites judicial discretion which can have an effect on determining a case.

Whilst children can be held to a generally lower standard, professionals with a specialised skill-set are held to the higher standard of the reasonable professional in their field on the basis of knowledge

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