Tutorial 2 Tort

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Tutorial 2:

What is an “objective” standard of care? Why, if at all, is it superior to a subjective one?

According to Macmillan L:

“It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is

in question.” “The reasonable man is presumed to be free both from over-apprehension and from over-confidence.”

D’s conduct must be judged in the light of “all circumstances of the case”, it is important to distinguish between, on the

one hand, external circumstances (e.g. D was acting in an emergency) and on the other hand, “circumstances” which

are personal characteristics of D.

Megaw LJ:

Once the law accepted the principle that the standard of care could be varied according to the experience of the

particular D, it would be logically impossible to confine application of the principle to cases of driving. This would mean

that in every negligence case, the court would be obliged to hear evidence about the level of competence to be

expected of a reasonable person w the same level of experience as D. Such an exercise would be costly and time-

consuming and would undoubtedly produce unpredictability & uncertainty in law.

Looks at what a reasonable person would do in that circumstance, does not look at the individual person being

questioned. There is a subjective factor to the “reasonable” man in the certain circumstances especially in medical

negligence. Courts disregard the factors that individualise people from being ‘normal’.

Subjective standard of care would cause uncertainty & unpredictable in law - unable to apply precedent, time

consuming, costly.

Who can afford to bring a case to court? Getting more and more expensive.

2. How would you have decided Nettleship? What does the decision achieve?

I would have agreed with the judgement of Lord Denning but however, it may be considered unfair to compare the

driving ability of a learner driver to that of a competent and experienced driver.

The decision establishes boundaries to the assessment of the standard of care otherwise, every situation/case would

need to assess the level of competence to be expected of a reasonable person w the same level of experience as the

D = costly, time-consuming, creates unpredictability & uncertainty.

Nettleship v Weston [1971] 2 QB 691 (CoA)

Case facts:

- D was a learner driver, C was a family friend who had agreed to give D driving lessons.

- On 3 rd lesson, the car was moving v slowly, w C changing gears & D steering, D panicked.

- The car mounted a pavement & hit a lamp-post, causing C to suffer a broken knee cap.

- C sued D for personal injury.

Judgements:

- Majority of court held that her conduct was not to be judged by the standard of a learner driver but by the

standard of a reasonably competent and experienced driver.

- Denning L: although D was morally at fault, she should be regarded as legally at fault. Since she was legally

required to be insured, it made sense that she should bear the risk of her driving.

Outcome:

- Held that since C had checked on the insurance position, he had expressly not consented to run the risk and

there was no question of volenti non fit injuria (if someone willingly places themselves in a position where

harm might result, they are not able to bring a claim against the other party.)

- Held that the duty of care owed by a learner driver was the same as that owed by every driver, D was liable in

damages.

3. Explain how the Compensation Act 2006, s 1 and the Social Action, Responsibility and Heroism Act 2015

changed the law.

The Compensation Act 2006: the deterrent effect of potential liability.

1 Deterrent effect of potential liability

A court considering a claim in negligence or breach of statutory duty may, in determining whether the

defendant should have taken particular steps to meet a standard of care (whether by taking precautions

against a risk or otherwise), have regard to whether a requirement to take those steps might–

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way,

or

(b) discourage persons from undertaking functions in connection with a desirable activity.

- Compensation Act 2006 S. 1 is designed to promote the idea that people and organisation who wish to

undertake socially worthwhile activities should not be deterred from doing so by an unrealistic fear of

negligence liability.

- Courts questions whether the

- Hopps – was being transported to a project in Iraq, was carried in a regular Land Rover, hit a bomb & severely

injured, but if he would have to wait for an armored car, would he have been able to complete his job, will

avoid him from completing his social action.

Social Action, Responsibility and Heroism Act 2015

- The aim was to dampen the “compensation culture” – this act applies when a court, in considering a claim that

a person was negligent or in breach of statutory duty, is determining the steps that the person was required to

take to meet a standard of care.

- Sections 2-4 highlight that the court should consider:

o Whether the alleged negligence or breach of statutory duty occurred when the person was acting for the

benefit of society of any of its members (s. 2)

o Whether the person, in carrying out the activity giving rise to the claim, demonstrated a “predominantly

responsible approach” towards protecting the safety or other interests of others (s. 3)

o Whether the alleged negligence or breach of statutory duty occurred when the person was acting

heroically by intervening in an emergency to assist an individual in danger (s. 4)

These provisions provide reassurance, e.g. to volunteer groups which organise outdoor pursuits, and

schools wishing to take pupils on excursions.

While these acts do not extend the common law, the aim is to make the law clearer and thereby

discourage unmeritorious claims against bodies which organise desirable activities and encourage

rescuers who may be fearful of being sued if the rescue goes wrong.

4. Write a summary (not a full essay answer) of the legal arguments relevant to deciding the problem question

below, dealing only with the issue of breach of the duty of care in negligence.

Make sure that you identify:

- the parties to the various actions (who is suing whom);

- the loss of which the claimant complains;

- what the claimant alleges the defendant has done wrong;

- what issues of fact and/or law arise, and

- what legal principles are to be applied.

- Refer to relevant case-law authority which supports the arguments you are making.

Adam, who has recently started working as a carpenter, is replacing a heavy wooden door in Barry’s home.

The new door collapses soon after its installation and injures Barry. It appears that Adam had used metal hinges

which were not strong enough for the replacement door. Barry goes to his local health centre where he is treated for

cuts and bruising to his arms and legs. Camilla, the nurse treating Barry, administers a medicine intended to reduce

the bruising but is has the effect of worsening Barry’s condition with the result that one of his arms has to be

amputated. The medicine used was one that has generally been used in such cases with good results, but a paper

appeared in a recent copy of The Lancet – the leading medical journal – which demonstrated that the medicine could

produce an adverse reaction in rare cases where the patient was abnormally susceptible. Camilla has never read

‘The Lancet’. Dilbert, the doctor in charge, has decided not to stock an alternative medicine, whose use does not

entail the same risk, because it is too expensive.

Discuss.

Claimain: Barry, Defendant: Adam, Camilla, Dilbert

- the parties to the various actions (who is suing whom);

o Barry is suing Adam for not attaching the door in his home properly – using the but for test, but for Adam’s

negligence when installing the door, Barry would not have been hurt.

o Barry is suing the hospital for administering a medicine that had a negative effect on his arm, despite it

usually getting good results

- the loss of which the claimant complains;

o The amputation of his arm

- what the claimant alleges the defendant has done wrong;

o Barry v Adam - Failed to attach doors/door hinges that were strong enough

o Barry v hospital – negligently administering a drug that may have an adverse reaction, stocking no alternative

medicine on the basis of cost reasons, not remaining up to date on medical advances – the reasonable

doctor may have done this

- what issues of fact and/or law arise, and

o Does Adam owe a duty of care to Barry as his carpenter?

o Was Adam in a breach of duty when he failed to attach strong enough door hinges? Would the reasonable

professional carpenter do the same?

o Was Adam’s failure to attach door hinges that were strong enough the cause of Barry’s condition?

o Has the medical care administered to Barry broken the chain of causation?

o Did Camilla owe a duty of care towards Barry? (Doctor & patient – established duty of care)

o Was Camilla in a breach of duty in administering the medicine to treat Barry? Or was it Dilbert who was in a

breach of duty?

- what legal principles are to be applied.

o ‘but for’ test

o Objective standard of care test

o Factors of standard of care

- Refer to relevant case-law authority which supports the arguments you are making.

o Nettleship v Weston

o Roe v Ministry of Health [1954]

o Montgomery v Lanarkshire Health Board [2015] UKSC 11

o Gallardo v Imperial College NHS Trust [2017]

o Bolam v Friern Hospital Management Committee [1957] 1 WLR 582