LAW OF TORT

THE TORT OF NEGLIGENCE

BREACH OF DUTY

THE STANDARD OF CARE AND DIFFERENT CLASSES OF DEFENDANT – CHILDREN, EXPERTS AND PROFESSIONALS

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

INTRODUCTION

General Principle

• Once a duty of care has been established, the claimant must prove that the defendant breached that duty.

• A breach occurs when the defendant falls below the required standard of care.

• The standard of care is not identical for every defendant.

• Although negligence generally applies an objective test, courts recognise that certain categories of defendants require special consideration.

• The most important categories for CAIE A Level Law are:

• Children.

• Experts.

• Professionals.

THE GENERAL OBJECTIVE STANDARD

The Reasonable Person Test

• Defendants are usually judged against the standard of the reasonable person.

• The court asks:

Would a reasonable person have acted differently in the circumstances?

• The standard is objective.

• The defendant’s personal beliefs are generally irrelevant.

• The defendant’s personal opinion about their own conduct is irrelevant.

Leading Case: Vaughan v Menlove

Facts

• Defendant stacked hay in a dangerous manner.

• He was warned repeatedly that the hay could catch fire.

• Fire eventually broke out and damaged neighbouring property.

Defendant’s Argument

• Claimed he acted according to his own best judgment.

Decision

• Defendant liable.

Principle

• Negligence is judged objectively.

• Personal judgment is not the test.

Significance

• Foundation of the objective standard of care.

CHILDREN

General Rule

• Children are not judged according to adult standards.

• Courts recognise that children:

• Lack maturity.

• Lack experience.

• Lack judgment.

• Applying the adult reasonable person test would often be unfair.

Standard Applied To Children

The Reasonable Child Test

• A child is judged according to:

The standard expected of a reasonable child of the same age.

• Courts compare the defendant with an ordinary child possessing similar age and maturity.

Why Is The Standard Lower?

• Children cannot be expected to behave like adults.

• Childhood activities often involve impulsive behaviour.

• Society accepts that children make mistakes.

• The law aims to achieve fairness.

Leading Case: Mullin v Richards

Facts

• Two fifteen-year-old girls were playing with plastic rulers.

• One ruler snapped.

• Fragment entered claimant’s eye.

Claim

• Negligence action brought.

Decision

• Defendant not liable.

Principle

• Child judged according to standard of reasonable fifteen-year-old.

Court’s Reasoning

• Ordinary fifteen-year-olds would not have foreseen the risk.

Significance

• Leading authority on negligence by children.

Leading Case: Orchard v Lee

Facts

• Two thirteen-year-old boys playing tag.

• One collided with claimant.

Decision

• No liability.

Principle

• Ordinary childhood behaviour does not automatically amount to negligence.

Significance

• Confirmed special standard for children.

Practical Effect

Younger Children

• Lower standard.

Older Children

• Higher standard.

Near-Adult Children

• Standard approaches adult level.

Examination Point

• Children are not judged by what a reasonable adult would do.

• Children are judged by what a reasonable child of the same age would do.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

EXPERTS

Definition

• Experts are individuals possessing specialised knowledge or skill in a particular field.

• Examples:

• Engineers.

• Architects.

• Surveyors.

• Scientists.

• Technical specialists.

General Rule

• Experts are judged according to the standard expected of a reasonably competent expert in their field.

• Possession of special expertise results in a higher standard of care.

Principle

• The law expects greater care from those who claim specialist knowledge.

• An expert cannot rely upon ordinary standards.

Reason For Higher Standard

• Public confidence.

• Protection of clients.

• Protection of consumers.

• Maintenance of professional competence.

Objective Nature Of Expert Standard

• Expert defendants are not judged according to:

• Their own personal level of skill.

• Their personal experience.

• Their own opinion.

• They are judged against the standard expected of reasonably competent experts.

Example

Engineer

• Structural engineer designs bridge.

• Design falls below standards expected of competent engineers.

• Negligence may arise.

Architect

• Architect produces defective plans.

• Standard measured against competent architects.

Surveyor

• Surveyor negligently values property.

• Standard measured against competent surveyors.

Importance For Examination

• Experts are judged more strictly than ordinary defendants.

• Higher skill creates higher legal expectations.

PROFESSIONALS

Definition

• Professionals are individuals possessing recognised professional qualifications and expertise.

• Examples:

• Doctors.

• Surgeons.

• Dentists.

• Solicitors.

• Barristers.

• Accountants.

General Rule

• Professionals are judged according to the standards expected of reasonably competent members of their profession.

• They are not judged according to ordinary reasonable person standards.

The Bolam Test

Leading Case: Bolam v Friern Hospital Management Committee

Facts

• Mr Bolam underwent electroconvulsive therapy.

• No muscle relaxants used.

• No physical restraints used.

• Patient suffered fractures during treatment.

Claim

• Negligence alleged against doctors.

Decision

• Doctors not negligent.

Principle

• Professional is not negligent if acting in accordance with a responsible body of professional opinion.

The Bolam Test States

A professional will not be negligent if:

• Conduct is supported by a responsible body of professional opinion.

• Even if another body of professional opinion disagrees.

Importance Of Bolam

• Leading authority for professional negligence.

• Protects professionals from hindsight judgments.

• Recognises existence of legitimate differences in professional practice.

Criticisms Of Bolam

Excessive Deference

• Courts appeared overly dependent on expert witnesses.

Professional Self-Regulation

• Professionals effectively judged themselves.

Lack Of Judicial Control

• Courts had limited ability to challenge professional practices.

The Bolitho Qualification

Leading Case: Bolitho v City and Hackney Health Authority

Facts

• Child suffered respiratory failure.

• Doctor failed to attend.

• Dispute over whether treatment would have been provided.

Decision

• Court introduced limitation on Bolam.

Principle

• Courts are not required to accept every professional opinion.

Rule

• Professional opinion must be capable of withstanding logical analysis.

Effect Of Bolitho

Before Bolitho

• Professional opinion usually decisive.

After Bolitho

• Courts may reject:

• Illogical opinions.

• Irrational opinions.

• Unreasonable opinions.

Importance Of Bolitho

• Restored judicial control.

• Increased claimant protection.

• Prevented weak expert evidence from automatically succeeding.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

MEDICAL PROFESSIONALS

Standard Applied

• Reasonably competent doctor.

• Reasonably competent surgeon.

• Reasonably competent specialist.

Specialist Standard

Leading Case: Wilsher v Essex Area Health Authority

Principle

• Junior doctors judged according to standards expected of the post they occupy.

Significance

• Inexperience is not a defence.

Duty To Warn Patients

Leading Case: Montgomery v Lanarkshire Health Board

Facts

• Pregnant woman not informed of significant risks during childbirth.

Decision

• Doctor liable.

Principle

• Doctors must disclose material risks.

Material Risk

• Risk that a reasonable patient would regard as significant.

Significance

• Strengthened patient autonomy.

• Reduced medical paternalism.

COMPARISON OF DIFFERENT CLASSES OF DEFENDANT

Ordinary Adult

Standard

• Reasonable person.

Authority

• Vaughan v Menlove.

Child

Standard

• Reasonable child of same age.

Authority

• Mullin v Richards.

• Orchard v Lee.

Expert

Standard

• Reasonably competent expert.

Authority

• General negligence principles.

Professional

Standard

• Reasonably competent professional.

Authority

• Bolam.

• Bolitho.

• Montgomery.

POLICY REASONS FOR DIFFERENT STANDARDS

Children

• Fairness.

• Recognition of immaturity.

• Social expectations.

Experts

• Protection of public.

• Maintenance of standards.

• Accountability.

Professionals

• Public confidence.

• Protection of clients and patients.

• Professional competence.

AO2 APPLICATION

Child Defendant Question

Ask:

• How old is the defendant?

• What would a reasonable child of that age have done?

• Was the risk foreseeable to a child of that age?

Expert Defendant Question

Ask:

• Did defendant possess specialist knowledge?

• What would a reasonably competent expert have done?

• Did conduct fall below accepted standards?

Professional Defendant Question

Ask:

• What is accepted professional practice?

• Does conduct satisfy Bolam?

• Does supporting opinion satisfy Bolitho?

• Are disclosure obligations under Montgomery satisfied?

AO3 EVALUATION

Strengths Of Different Standards

Children

• Fair and realistic.

Experts

• Protects public.

Professionals

• Maintains high standards.

• Promotes confidence in professions.

Criticisms

Children

• Claimants may receive less protection.

Experts

• Difficult and expensive expert evidence.

Professionals

• Bolam historically favoured defendants.

• Professional negligence cases often complex.

EXAM QUICK REVISION LIST

Key Cases

• Vaughan v Menlove

• Mullin v Richards

• Orchard v Lee

• Bolam v Friern Hospital Management Committee

• Bolitho v City and Hackney Health Authority

• Wilsher v Essex Area Health Authority

• Montgomery v Lanarkshire Health Board

Key Rules

• Adults → Reasonable person.

• Children → Reasonable child of same age.

• Experts → Reasonably competent expert.

• Professionals → Reasonably competent professional.

• Bolam → Responsible body of professional opinion.

• Bolitho → Opinion must withstand logical analysis.

• Montgomery → Duty to disclose material risks.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.