When setting the standard of care against which the accused’s actions are measured at the breach stage of a General Negligence claim, the courts will almost certainly impose what is recognised as the ‘objective standard’ on that individual. This paper is to critically analyse this the court’s application of the standard of care and will address the following. This paper will first outline the ‘objective standard’ and suggest why the courts favour its application when determining the standard of care. Secondly, the variations of this standard will be explored, where certain circumstances require a subjective approach. The necessity of this standard will be presented subject to cases concerning children and skilled professionals. 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 sufficient when determining the standard of care. After critically evaluating both applications of the courts, this paper will agree with the objective approach to a certain degree, nevertheless, giving rise to its limitations.
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 defendant’s actions to those of a ‘reasonable person’. This is 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’.3 Though this statement implies the availability of negligence as an action, the ‘reasonable man’ test has been adopted as a basis for determining the appropriate standard of care.4 There is an expectation of defendants to act in accordance with this hypothetical reasonable person, however, negligence will arise if one has not met this standard, or has failed to do rather what the reasonable person would do. Therefore, this ‘objective standard’, relative to an individual’s conduct within society,5 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’6 although a more contemporary approach by Lord Steyn would be ‘travellers on the underground’ as discussed in McFarlane v Tayside Healthboard.7
It must be noted that this objective test, established in Vaughn v Menlove8, does not consider an individual’s personal idiosyncrasies.9 Suggestively, the courts will focus on the expectation of a ‘reasonable person’ when conducting a specific activity, therefore, in order to establish this standard, judges may look to the ‘act and not the actor’ as applied in Wilsher v Essex10 where the actions of a junior doctor’s were held to the same standard of a qualified doctor. However, we must recognise that this is not a standard of perfection as on occasion, a reasonable person would make errors for instance in Birch11, the defendant was not liable for the injuries suffered by an intoxicated pedestrian who stepped out in front of their car.
Now that this standard has been outlined, we must consider the applications of this test. A notable case to consider is Nettleship v Weston12 where a driving instructor had been injured where the learner-driver had negligently crashed. What standard of care should be imposed on the learner-driver? Lord Denning stated, “his incompetent best is not good enough. He must drive in as good a manner of skill, experience and care”13. Therefore, the standard of care expected is the same as that required by a qualified driver. Similarly, a householder conducting repairs in their residence must not fall beneath the standard to be expected of a reasonably skilled carpenter14 as upheld in Wells v Cooper15. Where liability is imposed on a defendant, this test insists that the actor is held liable where he fails to meet an objective, ideal standard as implied through these authorities.16
The courts tend to adopt this objective approach due to its uniformity17 as a standard that has measured the conduct of defendants over one-hundred-and-fifty years18. Reasons why the courts favour this approach will be explored. Firstly, the courts may impose this standard as it ensures fairness. Lloyd LJ in Telnikoff19 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’.20 Where a defendant’s comment is fair by an objective test, this portrays an honest expression of their conduct. Additionally, 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 tend to impose this standard as it is not time constraining.
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 traditional approach.21 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 in actuality are possessed by a particular defendant.22 A subjective approach was considered in Mansfield23 which recognized that some situations require a focus on certain characteristics of particular 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.24
An exception arises when the defendant is a child. As a general rule, children are held to a partly subjective standard that not only focuses on the ‘reasonable prudent child’ but somewhat to a reasonable child of ‘similar age, ability and intelligence’.25 A reasoning for measuring a child’s conduct by this varying standard instead of the reasonable person test arises from the basic unfairness of predicating legal fault upon a standard which most children are incapable of meeting. Thus the standard of care is lowered.26 In McHale v Watson27, a 12-year-old-defendant had thrown a metal rod at wood where it rebounded and injured 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.28
A current case to consider is Orchard v Lee29 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 only for the purpose of establishing whether or not the child was able to identify the risk of injury to himself and to avoid danger. Outside this, there is an objective standard.30 In circumstances as such, a subjective element can be noted as the courts will scale the standard according to the 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 and knowledge may be taken into account when measuring the conduct of minors.
Another exception to consider are defendants who are held to a professional standard. If a defendant exercises a skill and is one the reasonable man does not possess, the courts will modify the objective standard. 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.31 In the assessment of medical negligence, the test for the standard of care expected of doctors is based on the principle enunciated in Bolam.32 A question presented before the courts was whether treatment had been administered correctly to the patient along with which standard of care that should be imposed. McNair J directed the jury that “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”.33 Otherwise, the defendant will not be in breach of their duty if they have acted accordingly as held here that the professional had acted in accordance with this practice. According to Brennan, this principle contains both subjective and objective elements where the test subjectively looks to the skill of an ordinary man professing to exert this skill.34
There has been conflicting views between the objective and subjective standards as to the sufficiency in its applications within the courts.35 In response to the last issue, this paper agrees
with the objective standard to a sufficient degree, nevertheless, there are weaknesses which must acknowledged.
The objective standard of care has been subject to criticism within academic literature where some believe it to be a ‘conceptually unsound in a fault-based liability system’.36 This approach has produced harsh decisions which may contradict the concept of it ‘fairness’. If we consider the ratio held in Nettleship37, it is evident that a learner-driver is unable to reach the standard of care to which they were held. The use of this ‘reasonable person standard’ may create some genuine inefficiencies, along with unfairness it might entail38. In turn, some may propose that the subjective test should be maintained instead due to its flexible nature. If a subjective assessment is implied instead, defendants may not be unduly penalised when determining the standard of care, and will not produce harsh decisions.39 However, a subjective approach could make 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 to interact”.40 Therefore, this paper upholds necessity of the objective standard if our expectations are to be sufficiently secure.
To refute the idea of its harshness, we can justify the decision in Nettleship41 as a practical reasoning was offered by Lord Denning. He suggested that the injured party is only able to recover if the driver is accountable. “So the judges see to it that he liable, unless he can prove care and skill of a high standard. Thus we are, in this branch of the law, moving away from the concept: ‘No liability without fault’. We are beginning to apply the test: ‘On whom should the risk fall?’. Morally the learner-driver is not at fault; but legally she is liable to be because she is insured and the risk should fall on her.’ In a moral sense, the learner driver is not at fault, but there is liability due to their insurance whereby the risk is imposed in law”.42
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.43 To support this notion, this test standardizes how citizens in society are expected to behave and excel, where it comports with a generalized conception of liberty and security for all persons.44 Furthermore, there is 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 where there is a necessity of establishing a generalised standard.
To summarise, this paper has outlined the ‘objective standard’ along with its modifications, giving rise to the subjective assessments on negligence. In concluding the final argument, the objective approach in determining the standard of care remains to be a fundamental test to the current application and is necessary to a sufficient extent, however certain scenarios which require a subjective approach for instance, when measuring the conduct of children and skilled defendants as outlined previously, this assessment should also be met. The current approach adopted by the courts with the use of both approaches is sufficient.
1 WF Schwartz, ‘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 Ibid 2; 784
4 Wendy Bonython The standard of care in Negligence. Canberra Law Review (2011) Vol. 10, Issue 2,
5 Rachael Mulheron Principles of Tort Law (CUP, 2016)
6 McQuire v Western Morning News 1903 2 K.B. 100 at 109
7 1999 Lord Steyn; 82
8 1837 3 Bing NC 467
9 Glasgow Corporation v Muir 1943 AC 448; 458 – ‘the objective standard ‘eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question’.
10 1988 1 All ER 871
11 Birch v Paulson 2012 EWCA Civ 487
12 1971 3 All ER 581
13 Ibid 12
14 Giliker and Beckwith. Tort Law (4th Edition, 2011) p.152
15 Wells v Cooper 1958 2 All ER 527
16 Ibid 25
17 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).
18 Blyth v Birmingham Waterworks Co. 1856 11 Exch. 781, 784; 156 E.R. 1047, 1049 per Alderson B.
19 Telnikoff v Matusevitch 1991 1 QB 102
20 Ibid 15 Lloyd LJ; 115
21 WE Peel and James Goudkamp, Winfield & Jolowicz on Tort (19th edn, London, Sweet & Maxwell, 2014) at p 146 6-010)
22 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.
23 Mansfield v Weetabix 1997 EWCA Civ 1352
24 Anita Bernstein. The Communities That Make Standards of Care Possible. 77 Chi.-Kent. L. Rev. 735 (2002).
25 Teller Books. Torts: Outlines and Case Summaries 3rd edition (2012)
26 David E. Seidelson. Reasonable Expectations and Subjective Standards in Negligence. Law 50 Geo. Wash. L. Rev. 17 (1981)
27 1966 HCA 13
28 Ibid 5
29 2009 EWCA 295.
30 Harry Schulman. Standard of Care Required of Children (1928). Faculty Scholarship Series. Paper 4596
31 Independent college Dublin, “FE1 Tort” (issuu)
32 Bolam v Friern Hospital Management Committee 1957 1 WLR 583
33 Ibid 32 at 118
34 Carol Brennan Tort Law Concentrate (OUP, 2017)
35 Ibid 1 – where some may support the idea of fairness to individual negligence tort, whereas others may look to the safety of negligence tort and the broader public,
36 James B. Ellis, Tort Responsibility of Mentally Disabled Persons, (1981)
37 Ibid 12
38 Jeffrey J. Rachlinski, Misunderstanding Ability, Misallocating Responsibility, 68 BROOK. L. REV. 1055, 1057 (2003) (“The reasonable person test may produce inconsistent outcomes with ordinary notions of justice and fairness.”).
39 V.H. Harpwood Modern Tort Law (Taylor & Francis Group e-Library, 2009)
40 David G. Owen. Philosophical Foundations of Tort Law (OUP, 1995)
41 Ibid 12
42 Ibid 12
43 Kirsty Horsey & Erika Rackley. Tort Law 5th edn. (OUP, 2017) p.217. Cane pg. 49
44 Jules L. Coleman, Legal Theory and Practice, 83 GEO. L.J. 2579, 2603-04 (1995)