When a professional standard. A fundamental issue to

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When setting the standard of care against whichthe accused’s actions are measured at the breach stage of a claim of GeneralNegligence, the courts will almost certainly impose what is recognised as the ‘objectivestandard’ on that individual. This paper is to critically analyse thisstatement with focus to the courts application of the standard of care, andwill address the following. This paper will firstly outline the ‘objectivestandard’ and suggest why the courts favour its application when determiningthis standard of care. Secondly, the variations of this standard will beconsidered, in particular to circumstances that require a subjective approach.The necessity of this standard will be presented subject to cases concerningchildren and those professing to a professional standard. A fundamental issueto address is whether negligence should be defined objectively or subjectively.1 Asthe objective standard is a prominent ruling within the law of Tort, it must bequestioned as to what extent this approach adopted by the courts is suitable whendetermining the standard of care.

After critically evaluating both applicationsof the courts, the proposition is that current objective approach is sufficientto a certain degree, nevertheless should be subjected to exceptions where analternative test may be appropriate to certain circumstances. To determinewhether a defendant has fallen below the standard of care, the courts willimpose what is known as the objective test. When setting this standard, thecourts will compare the actions of a defendant to those of a ‘reasonableperson’. 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 ordoing something a reasonable man would not do’. Though this statement suggests the availabilityof negligence as an action, the ‘reasonable man’ test has been adopted as a foundationfor determining the appropriate standard of care in negligence.

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3 Generally,defendants are expected to behave in a manner consistent with this hypotheticalreasonable person and will be negligent if they have fallen below thisstandard, or failing to do something which the reasonable man would do.Therefore, the objective standard is synonymous with the reasonable personstandard.  An initial interpretationof the ‘reasonable man’ was denoted by Sir Richard Henn Collins as ‘the man onthe Clapham omnibus’4 although a more contemporary approach byLord 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 personalidiosyncrasies.7 In application of this test, the courts willnot only consider the characteristics of the defendant but focus on theexpectation 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 theactor’ as applied in Wilsher v Essex8where a junior doctor’s actions were held to the same standard of a qualifieddoctor.  However, we mustacknowledge that this is not a standard of perfection and on occasion, areasonable person would make mistakes for instance in Birch9,the defendant was not liable for the serious injuries suffered by adrunk pedestrian who stepped out in front of their car.  Now that thisstandard has been outlined, we must consider the court’s applications of thistest. An example to note is Nettleship vWeston10where a driving instructor had been injured as the learner driver hadnegligently crashed. Does the standard of care lower for learner drivers? LordDenning stated, “his incompetent best is not good enough. He must drive in asgood a manner of skill, experience and care”11therefore the standard of care expected is the same as that required by aqualified driver. Equally, a householder doing DIY work must not fall below thestandard to be expected of a reasonably competent carpenter in doing the workas imposed in Wells v Cooper12. Therationales behind these cases imply the necessity to uphold the standard of thereasonable person.

Where liability is imposed on a defendant, this test insists that the actor mustbe held liable where he fails to meet an objective, ideal standard. The courtstend to adopt this objective approach due to its uniformity as a standard thatis applicable to all individuals.13In turn, this approach has measured the conduct of defendants over 150 years,14 soas to emphasize its consistency within the courts, the beneficial aspects ofthe standard will be explored. Firstly, thecourts may impose this standard as it ensures fairness.

Lloyd LJ in Telnikoff15 implied the necessity for theapplication of this standard where ‘fairness is objective and is for thedefendant to establish…lack of honest belief is subjective’.16Where a defendant’s comment is fair by objective test, this portrays an honestexpression of their conduct. Secondly, thecourts may impose this standard is it would be time consuming to determine therelevant capacities of every defendant. Moreover, there is difficulty to tailorthe 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 timeconstraining and exhaustive to achieve. Moving on tothe idea of morality, courts may favour this approach in order to set astandard of conduct whereby citizens are expected to strive to meet thecriteria of a reasonable person.

The courts intend for all to satisfy thereasonable person, hence upholding the law. To further support this notion,Cane suggests that the courts will continually impose this standard as it is anattempt to strike a fair balance between competing interests in freedom ofaction and personal security we share.17 Thissuggesting that the objective approach aims to achieve a fair balance.

There isa necessity of establishing a generalized standard as such that is fair, timeefficient and ethical.          It is apparentthat the objective standard will most commonly be imposed when setting thestandard of care. Nevertheless, on occasion, the courts will modify thisstandard where certain circumstances of particular defendants will be considered,thus deviating from the objective approach.

18 Exceptionsare created for those who generally will be held to the subjective standard ofa reasonably careful person with the same physical and mental capacities thatare in actual reality, possessed by a particular defendant.19 A subjective approach was consideredin Mansfield20 whichrecognized that there are situations which require to focus on certain characteristicsof some defendants. Consequently, this standard will exonerate the actor whose abilities are less thanthose of the universal norm if the actor measured up to his own lesserpotential while causing an injury.21  An exception arises when the defendant is achild where the standard of care is lowered. A general rule is that children areheld to a partly subjective standard that not only looks at the ‘reasonable prudentchild’ but rather to a reasonable child of ‘similar age, ability andintelligence’.22A reasoning formeasuring a child’s conduct by a varying child standard instead of thereasonable man standard originates from the basic unfairness of predicating legalfault upon a standard which most children are incapable of meeting.23 In McHale v Watson24, a12 year old defendant had thrown a metal rod at wood where it bounced off andhit the claimants eye, causing blindness.

What standard should the child beheld to? OwenJ expressed that “the standard of a child’s conduct should be measured thatreasonably to be expected of a child of the same age, intelligence andexperience”, thus imputing a subjective component here.25 A more modern caseto consider is Orchard v Lee26 wherea 13 year-old-boy had collided with the claimant whilst playing with anotherchild. The qualities ofknowledge and experience of children are individualized-subjective-but for thepurpose of determining whether or not the child was capable of perceiving therisk of injury to himself and of avoiding the danger but beyond that, there isan objective standard.27 Incircumstances as such, a subjective element can be noted as the courts willscale the standard according to age of that child. Although this remains apurely objective test, we can see the modification of the objective test wherebysubjective qualities such as age, knowledge, may be taken into account whenconsidering the conduct of minors.  Moving on, we will consider the standard ofdefendants who are of a professional standard.

So when a defendant exercises askill and is one the reasonable man does not possess, the courts will modifythe objective standard and apply a different approach where the standard is notjudged according to reasonable man test. Actions of these defendants aremeasured against those of an ordinary skilled man professing to exercise thatskill, hence they are bound those of a reasonable practitioner of that skill. Inthe assessment of medical negligence, the test for the standard of careexpected of doctors is based on the principle enunciated in Bolam.28 Aquestion presented before the courts was whether treatment had beenadministered correctly along with which standard of care should be imposed. NOTGUILTY “a medical professional is not guilty of negligence if he has actedin accordance with a practice accepted as proper by a responsible body ofmedical men skilled in that particular art.

According to Brennan, the Bolamprinciple contains both subjective and objective elements where the test is thestandard of the ordinary skilled man professing to have that special skill.29 Courts must subjectivelylook to the defendants skill.                                          There has beenconflicting views between the objective and subjective applications where somemay focus towards the fairness to individual negligence tort, but others maylook to the safety of negligence tort and the broader public.30 After a critical analysis, thispaper will support both approaches adopted by the courts, where theobjective should remain as the traditional uniform standard and the subjectiveassessment should apply when certain circumstances must be accounted for.  The objective standard of care has been subjectto criticism within academic literature where it has been noted to be’conceptually unsound in a fault based liability system’.31 Thosein objection of this approach may argue that this test has been subjected toproduce harsh decisions, thus contradicting the idea of it ‘fairness’.

If weconsider the decision held in Nettleship,it is evident that a learner driver is unable to reach the standard of care towhich she was held, imposing liability without genuine fault. Theuse of a uniform reasonable person standard creates some genuine allocativeinefficiencies, in addition to any unfairness it might entail32.  However, wemust look to positive aspects of this approach. This approach standardizes howcitizens of our society are expected to behave and excel, upholding the objectiveapplication to the courts. Sam Nunn argues that the approach relates toperson’s conduct within society.33 Jules L. Coleman favours theobjective standard because it comports with a generalized conception of libertyand security for all persons.

34 Theobjective approach enables the law of tort to ensure a degree of certainty toreinforce the rules of behaviour. See that imposing this approach enforces thisidea with society so citizens can be deterred of committing crimes. To refutethe idea of its harshness, we can justify the decision in Nettleship if weconsider The practical justification was offered quite openly by Lord DenningMR: the injured person can recover damages from an insurer only if the driveris liable in law.

So the judges must see to it that the is liable unless he canprove 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” toanother, “On whom should the risk fall?”. Morally the learner driveris not at fault, but legally she is liable because she is insured and the riskshould therefore fall on her. Moving on tothe subjective approach, a limitation according to R.W.

Wright is that the”external exercise of freedom depends on sufficient security againstinterference by others with one’s person and property. And the use of asubjective approach makes such security impossible, “since the risks to whichone could permissibly be exposed by others would depend on the subjectivecapacities of the particular others with whom one happens (often unpredictably)to interact”. Therefore, arguably an objectivestandard is therefore better andrequired if our expectations are to be sufficiently secure.35 An agreementwith the subjective approach is that decisions may not be as harsh as seen incases where the objective approach has been applied. Subjective standardfavours liability, disadvantage and advantage but to highlight a downfall,could this lead to an imposition of crushing liability? A prescribed standardof care can reduce the process costs associated with a rule of subjectivenegligence in two ways. First, applying a single standard avoids the costs ofascertaining what is optimal care for a particular individual (Schawrtz).Subjective approach should be maintained as those that fall into the categoryof exceptions such as children are not unduly penalized when determining thestandard of care, again will not produce harsh decisions.36 We can seethat both approaches have strengths and weaknesses however within negligencecases both the objective and subjective approaches have the same purposes:those members of a population who engage in an activity should be those whoshould engage in the activity, and they should exercise what is for themoptimal care.

 In concludingthe final argument, the objective approach to determining the standard of careremains to be a fundamental and vital test to the currents and is sufficient toa high extent, however certain scenarios which require a subjective approach,relating to other cases, should be met. The current system adopted by thecourts is sufficient within cases of general negligence.           1 Schwartz WF, ‘Objective andSubjective Standards of Negligence: Defining the Reasonable Person to InduceOptimal Care and Optimal Populations of Injurers and Victims.’ (1989) 78(2) GeoL J 2412 Blyth v Birmingham Waterworks Co. 1856 11 Ex Ch 7813 Wendy bonython Canberra Law Review (2011) Vol. 10, Issue 2, The standardof care in Negligence.4 McQuirev Western Morning News 1903 2 K.

B. 100 at 109 per CollinsMR.5 1999Lord Steyn at 8261837 3 Bing NC 4677 GlasgowCorp v Muir81988 1 All ER 8719 Birch v Paulson 2012 EWCA Civ 487101971 3 All ER 58111 Ibid 10 12 Wells v Cooper 1958 2 All ER 52713 JosephH. King, Jr., Reconciling the Exercise of Judgment and the ObjectiveStandard of Care in Medical Malpractice, 52 OKLA. L. REV.

49, 49 (1999).14 Blythv Birmingham Waterworks Co. (1856) 11 Exch. 781, 784; 156 E.R.

1047, 1049per Alderson B.15 Telnikoffv Matusevitch 1991 1 QB10216 Ibid15 Lloyd LJ,at 11517Tort Law by Kirsty Horsey & Erika Rackley 5th edn. OxfordUniversity Press 2017 page 217. Canepg. 49 18 WEPeel and James Goudkamp, Winfield & Jolowicz on Tort (19thedn, London, Sweet & Maxwell, 2014) at p 146 6-010)19 SeeRESTATEMENT (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 Mansfieldv Weetabix 1997 EWCA Civ 135221 Anita Bernstein, The Communities That MakeStandards of Care Possible, 77 Chi.-Kent. L.

Rev. 735 (2002).22 Torts: Outlines and Case Summaries (LawSchool Survival Guide) Teller Books; 3rd edition(30 September 2012)23 David E.

Seidelson, Reasonable Expectationsand Subjective Standards in Negligence Law: The Minor, the Mentally Impaired,and the Mentally Incompetent , 50 Geo. Wash. L.

Rev. 17 (1981) 241966 HCA 1325 Principles of Tort Law ByRachael Mulheron26 2009EWCA 295.27 “Standard of Care Required ofChildren” by Harry Schulman (1928).

Faculty Scholarship Series. Paper459628 Bolamv Friern Hospital Management Committee (1957) 1 WLR 583 29 Tort Law Concentrate: Law Revision and StudyGuide by Carol Brennan30 Schwartz31 James B. Ellis, Tort Responsibilityof Mentally Disabled Persons, 1981 A32Jeffrey 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 andfairness.”).

33 Principles of Tort Law by Rachael Mulheron 2016 34Jules L. Coleman, Legal Theory and Practice, 83 GEO. L.J. 2579, 2603-04 (1995)35  ibid33 pp 651–688 at 67236 Modern Tort Law 7/e By V.H.

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