Standard of care

The general principle in English law is that standard of care is entirely objective – that of a reasonable person : Blyth v Birmingham Waterworks. For example, in Bolton v Stone 1951, the claimant was struck by a cricket ball from the defendant's pitch. Although the risk was forseeable, the test was held to be what a reasonable cricket club would have done. In this case, the risk of injury was judged to be so slight, that no reasonable club could have been expected to protect against it.

The standard of care is higher where the possibility of danger is higher : Haley v London Electricity Board or where the gravity of potential injury is greater –Paris v Stepney Borough Council.

In general, the motive of the defendant is irrelevant to the determination whether he breached the duty of care, as are his own personal qualities. The determination is made by comparing the defendant's behaviour with what would reasonably be expected to meet the standard of care required by law.

The objectivity of the standard of care means, in practice, that if a person holds himself out as possessing a certain skill, or carries out activities that represent him as having that skill, then he must display a level of competence associated with that skill. Cases that illustrate this point include Wells v Cooper 1958 (DIY home repairs must meet the standard of a reasonably competent tradesman) and Chaudhry v Prabhakar 1989 (informal advice on car buying must be as good as a reasonable competent car trader).

To many people this principle seems harsh. The implaccability of the courts in this respect is well demonstrated by the case of Nettleship v Weston 1971. In that case, the Court Of Appeal held that a learner driver who caused a road accident should be judged against the same standards as a qualified driver. The courts have not taken this decision to its logical conclusion and, for example, held that a child be expected to display the same degree of foresight as an adult. It has been argued that those who consider this priniple harsh are confusing `blameworthiness' with `culpability'. No-one is suggesting that Mrs Weston was personally blameworthy for the accident but, nevertheless, she did cause it. The law of negligence, on the whole, is concerned with who should foot the bill and, in a two-party case like Nettleship, it is clear where that responsibility falls. Some policy considerations

1. Who can bear the loss in the particular case
2. Was the defendant insured
3. What implications will the particular case have for future cases
4. What standard of safety can potential claimants expect
5. What are the implications of a particular decision for a society as a whole
6. Utiliy of conduct – Watt v Hertfordshire CC – risk of the equipment causing injury in transit was not so great as to prevent the efforts to save the woman’s life
7. Expense of taking precautions - In Latimer V AEC 1953, the defendant was injured when he slipped on a floor contiminated by oil in his employer's factory. The claimant suggested that the risk was forseeable, and that the employer should have closed the factory until the risk was abated. However, it was held that the standard of care was that of the reasonable employer; in the circumstances the risk was so small that no reasonable employer could have been expected to close the factory.

Particular problems arise in cases where the defendant is an expert in some particular field. In medical cases, for example, a doctor's judgement will be measured against the standards of the profession as a whole. It does not matter that there is a body of opinion, even perhaps a substantial body, that would not have come to the same conclusion (Bolam v Friern Hospital Management Committee 1957). However, the existence of expert testimony does not prevent the determination of whether the defendant was in breach or not being a legal matter (Bolitho v City and Hackney HA1998); It is in principle open to the court to hold the defendant liable, in the face of expert evidence to suggest that he did what would have been expected of him by the profession.

The traditional English approach shows a “doctor knows best” attitude. The professional bodies now encourage greater openness and encourage doctors to explain the advantages and disadvantages of particular treatment unless there is good reason for not doing so.