Exploring the Standard of Care

A breach of duty is determined by the standard of care of the “reasonable man”. This is reflected in the definition given by Baron Alderson in the case of Blythe v Birmingham Waterworks (1856). According to him, negligence involves either an omission to act, which would not have been otherwise committed if the defendant would have acted like a reasonable and prudent man in ordinary conduct of human affairs, or an act which the reasonable and prudent man would not have done. However, this definition may create problems in defining who the reasonable and prudent man is. Determination of the definition seems subjective as was observed by Lord Macmillan in Glasgow Corporation v Muir (HL 1943). He stated that a reasonable man is presumably free from over-apprehension as well as from over-confidence. The court has to determine it subjectively given circumstances of the case, the contemplation of what a reasonable man would have had and what the defendant would have had foreseen. This may be arguably narrow. If you are seeking law dissertation help, it is important to navigate through these intricate legal interpretations.

The defendant’s act or omission is measured against external standard of the reasonable person. This apparently does not consider the view that the defendant might have been incapable of reaching the standard. Presumably, the defendant might not be able to plead his inability or failure of knowledge or skill. It could therefore be stated that the standard of reasonable person may seem too high a standard to be practically possible to meet in every situations. There are other factors that carry more weight, for instance the risk of damage in assessing the defendant act against the reasonable standard of care in the case of Bolton v Stone (1951 HL) Lord Radcliffe stated that negligence law is concerned less about fairness than about culpability. This may present a conflict between the prescribed reasonable standard of care of that of a reasonable, which is labelled as culpa levis in abstracto and prudent person and the reasonable standard attributes of the defendant, which is labelled culpa levis in concreto. The defendant’s ability will affect the levels of his concrete duty against the abstract standard of care of a reasonable person. For instance is the case of equitable wrongs, which demonstrate more significant departures from this abstract standard than the common law traditional position. For example, the courts of equity expect a company director to exercise standard of care of a reasonable person with their level of skill and experience, whereas, trustees are expected to live up to the standard of an ordinary person in making an investment. Similarly, in case of traffic liability, there would be a conflict between firstly courts’ constructed reasonable driving and as commonly practice and secondly, between courts’ constructed reasonable performance of certain comparable activities, not insured and reasonable performance as commonly practice. Then, there is the element of uninsured pedestrians, where the defence of contributory negligence may be applied. These are directly comparable situations, but there are certain situations that may not be comparable, which may be the ideal standard for pedestrians, or the standard of reasonable care exercised while inspecting vehicles. All these situations and the corresponding standards may prove to be unrealistic.

Standard of care may also be customised based on the circumstances of the defendant. The determination of the level of standard seems to have moved from the abstract notion of the reasonable man to more concrete notion of duty of the reasonable man. Thus, as regards the duty of the defendant, the criteria of reasonableness may include the consideration of what the particular defendant and not of an average man could be expected to do. Thus, subject to the skills of the defendant, common law and equity require the defendant to be assessed by the standard of a reasonable person with that level of knowledge and skills professed. Thus, in Bolam case, it was observed that a doctor will not be liable for negligence in case he adhered to accepted practices laid down by an authoritative body of medical experts in that particular medical field. The courts may not be willing to challenge expert professional opinions. However, in Bolitho case, Lord Browne-Wilkinson emphasised that for an expert opinion to be considered evidence of proper and non-negligent practice, it must be reasonable and responsible. It must be shown that the exponents of the opinion must have logical basis. In case this cannot be done, the court will determine that the whether the expert opinion is reasonable or not. The requirement of what could be expected from a reasonable person with the necessary skills professed may be wide and be considered unrealistic. The requirement of standard of care must relate to what is expected of the profession to the specific skill the defendant possesses. It would be unrealistic otherwise to demand more expectation. This is supported by the case of Luxmoore-May.

Establishing duty of care may prove easier than establishing standard of care, which might difficult. For example in medical profession, the question of professional negligence may turn problematic as each surgical discipline may assume a self-regulating characteristic where it sets its own standards. This may create difficulty in finding a balance in law between interests of the medical professionals and adherence to the standards. These kinds of situations raise a question of the discretion of the court to exercise such determination when in fact it may not have the kind or the level of expertise that the body may have. This may present a varying degree of standard of care, which may not sound reasonable and realistic to defendants, who have to constantly adhere to standards established by recognise bodies and also expose to risk of being held liable due to the court option of tailoring the standard depending of circumstance of the case. Therefore, establishing the duty of care and the reasonable standard may not be easy in cases where it is not easy to establish whether an act or omission has caused the damage. The relative varying degree of customised standard sets unrealistic expectation.

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