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A Matter of Law

There are two key questions for deciding whether there has been a breach in the duty of care: what is the required standard for the duty of care owed?; and has the defendant reached that required standard?

On this page we shall be looking at the first question. This is a matter of law and is an objective test, as the Judge decides what the required standard is by following previous precedents. There are no varying degrees of negligence in the eyes of the law, however there are varying standards of duty that must be met by the defendant depending on the parties relationship.

Motorists:

The standard of care required of all motorists is the same, whether or not they have been driving for decades or are on their first driving lesson. Whilst this may initially seem harsh on the defendant, it must be remembered that it is the claimant who has suffered, and it would not be fair to recieve any different amount of compensation based on the maturity of the defendant, who is ultimately at fault and possibly dicing with the lives of others.

Nettleship v Weston - A learner driver was being taught by a friend, when she crashed into a lamppost. The friend was injured and claimed against her. The Court of Appeal held that she was liable, even though she was a learner. Lord Denning added "the learner driver may be doing his best, but his incompetent best is not enough. He must drive in as good a manner as a driver of skill, experience and care".

One may wonder why somebody would be willing to sue a friend, but it must be remembered that all drivers must be insured and it would be the insurance that would pay out. This would still put up the defendants premiums somewhat though.

If a motorist becomes physically incapable of driving due to a known impairment they still hold the same standard of care to other road users. If a condition is known about the driver is putting others at risk. It is for this same reason that epileptics, who can suffer seizures at any time, must follow strict conditions to gain a driving licence.

Roberts v Ramsbottom - A driver suffered from a stroke. After his seizure he continued to drive and crashed into a parked car. The court held that the defendant would not have been liable had he not continued driving after the seizure. He was therefore liable.

Mansfield v Weetabix - In this case a lorry driver had a previously unknown medical condition, which caused him to drift in and out of full consciousness on his 40 mile journey. He subsequently lost control and caused an accident. The court held him to be not liable. The standard of care was that of a reasonably competent driver and the medical condition could not be reasonably known or predicted.

Sports:

Participants in sport must act with reasonable care, the level of which depends on the circumstances of the players. Officials, such as referees, also owe a duty of care of which the level is dependant on the circumstances.

Condon v Basi - A dangerous tackle during an amatuer football match led to a broken leg. It was held that participants in competetive sports owe a reasonable duty of care to each other in regard to the circumstances. Circumstances does not mean the skill of the player, but a professional footballer would be more likely to be liable as they should know more about the risks of their actions.

Smoldon v Whitworth - The claimant was a rugby player in an under-17s match. The referee was aware that collapsed scrums can lead to serious injury in young players. The referee failed to prevent this and a player got paralysed. The player consented to the rules of the game, and the referee owed a duty to make sure they were followed.

Wooldridge v Sumner - The claimant was a press photographer at a major horse show. He was standing behind a 'barrier' consisting of plant pots. A rider, who was experienced and capable, took the corner too fast injuring the claimant. It was held that the act was made in an error of judgement and the rider was not negligent.

Lord Diplock stated "a participant in a game or competition gets into the circumstances in which he has no time or very litttle time to think, by his decision to take part in the competition at all... if in the course of this, at the moment when he really has not got time to think, a participant by mistake takes a wrong measure, he is not to be held guilty of any negligence". Part of the reason for this verdict is the policy reason that sport is good. The courts do not want to hamper the players enjoyment by clouding their concentration with fear of being liable.

Children:

Theoretically a child should be expected to exercise the same level of care as an adult. However the court recognises that this would not be fair in real life as a child does not consider risks with as much thought as an adult. The law tries to compensate the claimant, but at the same time tries to protect the child, as taking risks is part of growing up into a reasonable adult.

Mullins v Richards - Two school children, both aged 15 had a sword fight with plastic rulers in class. A bit of plastic snapped off, blinding one of them permanently. She claimed against the other girl and the judge gave her compensation, reduced by 50% for contributory negligence. The defendant appealed and the Court of Appeal felt that the judge had failed to take into accout their ages. It was held that the accident was just a result of a childish game, so the appeal was allowed.

Orchard v Lee - Two students, aged 13, knocked over a lunchtime assistant by running towards him. The defendant made contact with the assistant's cheek, causing serious injury. The assistant tried to claim against the students, not the school, and failed.

Sick and Disabled:

If a defendant has an illness or disability they would not be expected to exercise the same level of care as a 'normal' person in the situation. They would likely be judged against those with the same condition.

People Lacking Specialist Skills:

If a person is in possesion of a skill or profession, that others do not typically have, they must attain the standard of a reasonably competent person with the same profession.

Wells v Cooper - A man fitted a door handle in his own home. A visitor then fell down a set of stairs after it came apart from the door itself. The defendant had to reach the standard of a reasonably competent carpenter, but not that of a professional carpenter.

Medical Professionals and Experts:

Like other professionals, doctors and such must also reach that of a reasonably competent professional. There are several problems however, due to the complexity of the work and multiple methods of doing a procedure, in addition to a wide variety of policy factors. These include, but are not limited to:
  • disputes within the profession over what 'proper practice' actually is
  • few doctors even possessing a particular skill in the first place, to see what is 'reasonable'
  • cost, both for cases to be brought and higher insurance premiums
  • policy reasons such as over-worked under-resoursed staff

If there are a substantial number of doctors, with a specialty, that agree with the way a procedure was carried out, the defendant will not be liable - even if there are many other doctors that disagree.

Bolam v Friern - Bolam went to Friern Hospital to recieve treatment for mental illness. Whilst recieving 'electro-convulsive' therapy he fell of his bed after the shocks, resulting in a fractured bone. Bolam believed he should have been restrained, or given relaxation medication beforehand. Other doctors agreed they would have done the procedure the same, and the Court found that the hospital was not liable.

This case narrows the law by allowing doctors to escape liability if they can produce expert witnesses to agree with them.

Whitehouse v Jordan - The claimant was having a difficult labour. The defendant tried a method using forceps 'per vaginam' to the result of no success. After a while a caesarian section was used instead. The baby was brain-damaged from the forceps. A trial judge found the doctor negligent, but the House of Lords and Court of Appeal disagreed. He had made an error of clinical judgement, but that does not necessarily mean certain negligence. Some slight errors of judgement are made whilst still following professional skills properly. On the other hand others are so below the professional standsards that negligence is inevitable.

De Freitas v O'Brian - The claimant suffered injuries from an unorthodox medical procedure. The surgeon was not liable, even though the number of specialists agreeing with him were small, as it was a responsible body of medical opinion.

This case results in many different views. Is it fair on the claimant with such a small amount of specialists agreeing? This has to be balanced with the idea that there is no 'correct' answers and the floodgates arguement. If a practice is common yet obviously irresponsible, the defendant will be liable

Re: Herald of Free Enterprise - This case involves a ferry which sank, killing many people. It was common practice to close the doors whilst leaving port on ferries in order to shave time off of journeys. This was found to be unsafe and ignoring elementary safety precautions by the Courts.

Sidaway v Governers of Bethlem Royal Hospital - The claimant agreed to a spine operation, with only a 1% risk of prolems, but the doctor failed to warn her of a 1% risk of paralysis. She was paralysed, even though it had been competently performed. The House of Lords agreed that the degree of information given by the doctor conformed to 'a practice accepted as proper by a responsible body of neuro-surgical opinion', the doctor was not liable.

Wilsher v Essex Area HA - A trainee doctor working in a special care baby unit negligently misread a baby's oxygen levels, resulting in blindness. It was held by the House of Lords that the standard of care would not be lowered for trainee doctors, similarly to learner drivers.


Emergencies:

Jones v Boyce - A passenger on the defendant's coach reasonably thought it was going to crash and jumped off. The coach did not overturn, and the passenger broke his leg from the fall. The defendant was liable.

If somebody is reasonably avoiding an immediate negligent action by the defendant, the defendant can be liable for potential injuries.