Essay: The tort of negligence / standard of care

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  • Subject area(s): Law essays
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  • Published on: July 10, 2019
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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.

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