When a professional standard. A fundamental issue to

When setting the standard of care against which
the accused’s actions are measured at the breach stage of a claim of General
Negligence, 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 focus to the courts application of the standard of care, and
will address the following. This paper will firstly outline the ‘objective
standard’ and suggest why the courts favour its application when determining
this standard of care. Secondly, the variations of this standard will be
considered, 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, the proposition is that current objective approach is sufficient
to a certain degree, nevertheless should be subjected to exceptions where an
alternative test may be appropriate to certain circumstances.

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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’. Though this statement suggests the availability
of negligence as an action, the ‘reasonable man’ test has been adopted as a foundation
for determining the appropriate standard of care in negligence.3 Generally,
defendants are expected to behave in a manner consistent with this hypothetical
reasonable person and will be negligent if they have fallen below this
standard, or failing to do something which the reasonable man would do.

Therefore, the objective standard 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’4 although a more contemporary approach by
Lord Steyn notes ‘travellers on the underground’ in McFarlane v Tayside Healthboard5. The objective test, established in Vaughn v Menlove6, does not consider an individual’s personal
idiosyncrasies.7 In application of this test, the courts will
not only consider the characteristics of the defendant but focus on the
expectation of a reasonable person when conducting a specific action or activity.

So as to establish this standard, the courts may look to the ‘act and not the
actor’ as applied in Wilsher v Essex8
where a junior doctor’s actions were held to the same standard of a qualified
doctor.

 

However, we must
acknowledge that this is not a standard of perfection and on occasion, a
reasonable person would make mistakes for instance in Birch9,
the defendant was not liable for the serious injuries suffered by a
drunk pedestrian who stepped out in front of their car.

 

Now that this
standard has been outlined, we must consider the court’s applications of this
test. An example to note is Nettleship v
Weston10
where a driving instructor had been injured as the learner driver had
negligently crashed. Does the standard of care lower 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”11
therefore the standard of care expected is the same as that required by a
qualified driver. Equally, a householder doing DIY work must not fall below the
standard to be expected of a reasonably competent carpenter in doing the work
as imposed in Wells v Cooper12. The
rationales behind these cases imply the necessity to uphold the standard of the
reasonable person. 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.

 

The courts
tend to adopt this objective approach due to its uniformity as a standard that
is applicable to all individuals.13
In turn, this approach has measured the conduct of defendants over 150 years,14 so
as to emphasize its consistency within the courts, the beneficial aspects of
the standard will be explored.

 

Firstly, the
courts may impose this standard as it ensures fairness. Lloyd LJ in Telnikoff15 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’.16
Where a defendant’s comment is fair by objective test, this portrays an honest
expression of their conduct.

 

Secondly, 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 favour to impose the objective standard as it is not time
constraining and exhaustive to achieve.

 

Moving on to
the idea of morality, courts may favour this approach in order to set a
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. 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.17 This
suggesting that the objective approach aims to achieve a fair balance. There is
a necessity of establishing a generalized standard as such that is fair, time
efficient and ethical.

 

 

 

 

 

 

 

 

 

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 objective approach.18 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
are in actual reality, possessed by a particular defendant.19 A subjective approach was considered
in Mansfield20 which
recognized that there are situations which require to focus on certain characteristics
of some 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.21

 

An exception arises when the defendant is a
child where the standard of care is lowered. A general rule is that children are
held to a partly subjective standard that not only looks at the ‘reasonable prudent
child’ but rather to a reasonable child of ‘similar age, ability and
intelligence’.22
A reasoning for
measuring a child’s conduct by a varying child standard instead of the
reasonable man standard originates from the basic unfairness of predicating legal
fault upon a standard which most children are incapable of meeting.23 In McHale v Watson24, a
12 year old defendant had thrown a metal rod at wood where it bounced off and
hit 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.25

 

A more modern case
to consider is Orchard v Lee26 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 for the
purpose of determining whether or not the child was capable of perceiving the
risk of injury to himself and of avoiding the danger but beyond that, there is
an objective standard.27 In
circumstances as such, a subjective element can be noted as the courts will
scale the standard according to 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, knowledge, may be taken into account when
considering the conduct of minors.

 

Moving on, we will consider the standard of
defendants who are of a professional standard. So when a defendant exercises a
skill and is one the reasonable man does not possess, the courts will modify
the objective standard and apply a different approach where the standard is not
judged according to reasonable man test. 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. In
the assessment of medical negligence, the test for the standard of care
expected of doctors is based on the principle enunciated in Bolam.28 A
question presented before the courts was whether treatment had been
administered correctly along with which standard of care should be imposed. NOT
GUILTY “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. According to Brennan, the Bolam
principle contains both subjective and objective elements where the test is the
standard of the ordinary skilled man professing to have that special skill.29 Courts must subjectively
look to the defendants skill.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

There has been
conflicting views between the objective and subjective applications where some
may focus towards the fairness to individual negligence tort, but others may
look to the safety of negligence tort and the broader public.30 After a critical analysis, this
paper will support both approaches adopted by the courts, where the
objective should remain as the traditional uniform standard and the subjective
assessment should apply when certain circumstances must be accounted for.

 

The objective standard of care has been subject
to criticism within academic literature where it has been noted to be
‘conceptually unsound in a fault based liability system’.31 Those
in objection of this approach may argue that this test has been subjected to
produce harsh decisions, thus contradicting the idea of it ‘fairness’. If we
consider the decision held in Nettleship,
it is evident that a learner driver is unable to reach the standard of care to
which she was held, imposing liability without genuine fault. The
use of a uniform reasonable person standard creates some genuine allocative
inefficiencies, in addition to any unfairness it might entail32.

 

However, we
must look to positive aspects of this approach. This approach standardizes how
citizens of our society are expected to behave and excel, upholding the objective
application to the courts. Sam Nunn argues that the approach relates to
person’s conduct within society.33 Jules L. Coleman favours the
objective standard because it comports with a generalized conception of liberty
and security for all persons.34 The
objective approach enables the law of tort to ensure a degree of certainty to
reinforce the rules of behaviour. See that imposing this approach enforces this
idea with society so citizens can be deterred of committing crimes. To refute
the idea of its harshness, we can justify the decision in Nettleship if we
consider The practical justification was offered quite openly 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 the is liable unless he can
prove care and skill of a high standard. In this branch of the law, he went on,
we are moving away from the concept “No liability without fault” to
another, “On whom should the risk fall?”. Morally the learner driver
is not at fault, but legally she is liable because she is insured and the risk
should therefore fall on her.

 

Moving on to
the subjective approach, a limitation according to R.W. Wright is that the
“external exercise of freedom depends on sufficient security against
interference by others with one’s person and property. And the use of 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 (often unpredictably)
to interact”. Therefore, arguably an objective
standard is therefore better and
required if our expectations are to be sufficiently secure.35

 

An agreement
with the subjective approach is that decisions may not be as harsh as seen in
cases where the objective approach has been applied. Subjective standard
favours liability, disadvantage and advantage but to highlight a downfall,
could this lead to an imposition of crushing liability? A prescribed standard
of care can reduce the process costs associated with a rule of subjective
negligence in two ways. First, applying a single standard avoids the costs of
ascertaining what is optimal care for a particular individual (Schawrtz).

Subjective approach should be maintained as those that fall into the category
of exceptions such as children are not unduly penalized when determining the
standard of care, again will not produce harsh decisions.36

 

We can see
that both approaches have strengths and weaknesses however within negligence
cases both the objective and subjective approaches 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 them
optimal care.

 

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

 

 

 

 

 

 

 

 

 

 

 

1 Schwartz WF, ‘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 Wendy bonython Canberra Law Review (2011) Vol. 10, Issue 2, The standard
of care in Negligence.

4 McQuire
v Western Morning News 1903 2 K.B. 100 at 109 per Collins
MR.

5 1999
Lord Steyn at 82

6
1837 3 Bing NC 467

7 Glasgow
Corp v Muir

8
1988 1 All ER 871

9 Birch v Paulson 2012 EWCA Civ 487

10
1971 3 All ER 581

11 Ibid 10

12 Wells v Cooper 1958 2 All ER 527

13 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).

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

15 Telnikoff
v Matusevitch 1991 1 QB
102

16 Ibid
15 Lloyd LJ,
at 115

17
Tort Law by Kirsty Horsey & Erika Rackley 5th edn. Oxford
University Press 2017 page 217. Cane
pg. 49

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

19 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.

20 Mansfield
v Weetabix 1997 EWCA Civ 1352

21 Anita Bernstein, The Communities That Make
Standards of Care Possible, 77 Chi.-Kent. L. Rev. 735 (2002).

22 Torts: Outlines and Case Summaries (Law
School Survival Guide) Teller Books; 3rd edition
(30 September 2012)

23 David E. Seidelson, Reasonable Expectations
and Subjective Standards in Negligence Law: The Minor, the Mentally Impaired,
and the Mentally Incompetent , 50 Geo. Wash. L. Rev. 17 (1981)

24
1966 HCA 13

25 Principles of Tort Law By
Rachael Mulheron

26 2009
EWCA 295.

27 “Standard of Care Required of
Children” by Harry Schulman (1928). Faculty Scholarship Series. Paper
4596

28 Bolam
v Friern Hospital Management Committee (1957) 1 WLR 583 

29 Tort Law Concentrate: Law Revision and Study
Guide by Carol Brennan

30 Schwartz

31 James B. Ellis, Tort Responsibility
of Mentally Disabled Persons, 1981 A

32
Jeffrey J. Rachlinski, Misunderstanding Ability, Misallocating Responsibility,
68 BROOK. L. REV. 1055, 1057 (2003) (“The reasonable person test might . . .

produce results wholly inconsistent with ordinary notions of justice and
fairness.”).

33 Principles of Tort Law by Rachael Mulheron 2016

34
Jules L. Coleman, Legal Theory and Practice, 83 GEO. L.J. 2579, 2603-04 (1995)

35  ibid
33 pp 651–688 at 672

36 Modern Tort Law 7/e By V.H. Harpwood

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