- Information
- AI Chat
Law Breach of Duty Essay
Law of Tort (LAW209)
University of Liverpool
Recommended for you
Related Studylists
Tort LawPreview text
‘The standard of care in negligence is that of a reasonable man but can differ according to the type of circumstances’ Discuss the validity of this statement.
The ‘standard of care’ is the level of prudence and caution required of an individual who is under a duty of care. Baron Alderson in Blyth v Birmingham Waterworks stated that the standard of care is an objective standard, taking no account of the ‘incompetence of the defendant’. It was also stated that the standard of care is not one of perfection but one of objective reasonableness. However, cases such as Condon v Basi- where it was stated that the standard of care expected of a football player varies according to expertise- show that the test for the standard of care can vary. While it may be argued that this variation could lead to inconsistency in the application of the law, it is questionable whether it is justified to require the same standards from both amateurs and professionals, especially where the job requires practical learning, such as driving and medical practice. While this may be good for public policy, it may not be in the best interests of justice.
There are also limits to the test for the standard of care. Where there is an unknown or unforeseeable risk which leads to damage or injury, there is no breach of duty (Roe v Minister of Health). In cases such as these, it is more difficult for the claimant to succeed, as he now has to prove that the risk was known or foreseeable. This could lead to claimants having to bear damage or injury without having anyone to blame. However, an objective test may still apply to test for foreseeability of risk, as in Vaughan v Menlove, where it was held that the defendant’s best judgement was not enough, and as such he was judged by the standard of a reasonable man.
The use of a generic objective test when determining a standard of care may, however, be argued to be unfair. The approach taken in cases such as Condon v Basi and Wells v Cooper which did not hold amateurs to the same standard of professionals could be argued as a more just approach. Furthermore, it is may be necessary to make considerations for claimants with a particular disability. Physical disability which may increase the risk of harm could be considered, as was the case in Paris v Stephney BC and Haley v LEB. Claimants who have suffered psychiatric harm may also attract a higher standard of care from defendants, such as in Walker v Northumberland CC. However due to the nature of the scope of psychiatric injury, this may create potential for the floodgates to open, as workers could more easily claim for psychiatric harm caused by work-related stress (as in Walker v Northumberland CC) which is very common.
It may also be argued that the courts should consider the characteristics of the defendant. This may be especially relevant in the medical profession for issues of public policy. According to Wilsher v Essex AHA, a junior doctor owes the same standard of care expected of an experienced doctor. However, this is somewhat compensated for by the ways in which medical professionals are able to shape the test for the standard expected of their fellow professionals. For example, the Bolam test allows doctors to escape liability for negligent treatment if the practice used is accepted or supported by a body of opinion (formed of other medical practitioners). However, Bolitho v City and Hackney HA modified the Bolam test so that the method used by the medical practitioner must be proven as being defensible and based on logic. While putting the test for medical standards partially in the hands of medical practitioner may prevent the opening of the floodgates, it is questionable whether putting the law on the medical
profession in the hands of medical practitioners is in the interests of justice. That all drivers are held to the same standard, as in Nettleship v Weston regardless of levels of experience may also be questioned. However, it is of note that the law has taken into the account of other characteristics of the defendant, such as age (e. in Mullin v Richards) when determining the standard of care expected.
The standard of care may also differ based on the size of the risk and the cost of the precautions. Courts have demonstrated that the size of the risk and the cost of precaution to avert or prevent the risk must be reasonably balanced. In Bolton v Stone, it was decided that the cost of precaution outweighed the size of the risk and likelihood of harm and as such there was no breach of duty. The reverse was the case in Miller v Jackson, which was similar in facts to Bolton v Stone except that there were more cricket balls causing harm in a shorter period of time and as such, there was a greater likelihood of harm. Furthermore, precautions need only be reasonable to avoid risk. In Latimer v AEC for example, it was held that closing a factory to avoid injury following the factory’s flooding was an unreasonable length to go to avoid breach of duty. However, cases such as these could create many situations in which a claimant who has suffered harm due to a foreseeable and avoidable risk is left without a remedy.
In conclusion, it is largely more desirable to have different standards of care. While it may be argued that an objective standard would create more uniformity in the application of the law, it cannot be overlooked that situations that require special standards do exist. For example, it is necessary to consider other factors such as foreseeability of harm (as in Roe v Minister of Health), level of expertise (as in Condon v Basi), age (as in Mullin v Richards) and how the size of the risk and cost of precautions balance against each other (as in Bolton v Stone).
Law Breach of Duty Essay
Module: Law of Tort (LAW209)
University: University of Liverpool
![Negligence [GPOL] - Duty of care, breach of duty of care, and damage](https://d20ohkaloyme4g.cloudfront.net/img/document_thumbnails/2d598a10209587862bf77abb8600bc12/thumb_300_388.png)
