4 Standard Of Care

Question 1

Why is there limited case law on the standard of care

Answer 1

• law is vague and allows judges discretion
• decisions on breach are ones of fact not law
  - they are not binding on later cases
  - they cannot be easily appealed

Question 2

What is negligence (the quote)

Answer 2

“Negligence is conduct falling below the standard demanded for the protection of others against an unreasonable risk of harm” - American Restatement of the Law of Tort

Question 3

Describe taking an unreasonable risk

Answer 3

• risk is NOT unreasonable only bc injury can be foreseen (eg driving fast not unreasonable if done to save a life in emergency)
• 4 factors must be weighed, no single one is conclusive
• often uncertain whether fault can be proven on the facts

Question 4

What are the 4 factors applied to assess if there is a breach?

Answer 4

1) how likely is injury
2) how serious is likely to be the injury inflicted
3) how practical is it to take precautions
4) how valuable is defendants conduct to society

Question 5

Describe the first factor applied to assess if there is a breach (how likely is injury)

Answer 5

• injury need not be probable
• if there’s a ‘real risk’ that shouldn’t be ‘brushed aside as far fetched’ it should be guarded against
• remote possibilities may be ignored though (Bolton v Stone 1951)
• so there is a balance

Question 6

Describe the second factor applied to assess if there is a breach (how serious is likely to be the injury inflicted)

Answer 6

• concern here not with how great risk of injury is, but with how great injury will be IF risk should materialise
• Paris v Stepney Borough Council - loss of an eye to a one-eyed man is more serious than to someone with full vision, so more care should have been taken

Question 7

Describe the third factor applied to assess if there is a breach (how practical is it to take precautions)

Answer 7

• Goldman v Hargrove - only limited physical effort required to put out fire in a tree hit by lightning, so breach was more likely to exist
• also includes the degree of expenditure of money that it would have required to take precautions - must comply with industry standards or ‘common practice’
• Herrington v British Railways Board - more expected of an ‘organisation of substantial means’ tho so liability would be more likely

Question 8

Describe the fourth factor a applied to assess if there is a breach (how valuable is defendants conduct to society)

Answer 8

• Scout association v Mark Adam Barnes - scout activities were valuable to society, + normally property carried out w an element of risk, but incurred liability for unreasonably playing a game in dark, as doing so in dark is not valuable conduct for society, just harmful instead

Question 9

Describe the origin and purpose of the compensation act 2006, in relation to public benefit

Answer 9

• to combat compensation culture (excessive no of claims for damages)
• to combat excessive risk avoidance / aversion eg cancelling of school trips to avoid being sued for any injuries that may occur during
• restate the law, allowing value of D’s conduct to society to be considered
• educate public about nature of tort claims
• see section 1

Question 10

Does the compensation act 2006 change the previous common law position?

Answer 10

• commentary from Department for Constitutional affaires said no it doesn’t
• Association of Personal Injury Lawyers - agreed the Act will cause confusion and endless debate about what is a ‘desirable activity’
• first case on act - Hopps v Mott Macdonald + Ministry of a Defence - desireable activity of reconstruction of a shattered infrastructure after war in Iraq was a factor in finding no liability

Question 11

Describe the Social Action, Responsibility & Heroism Act 2015 (SARAH)

Answer 11

• a similar attempt to encourage volunteers, courts now required to consider whether person was:

1 - social action: “acting for benefit of society or any of its members”
2 - responsibility: demonstrating a ‘predominantly responsible approach towards protecting the safety or interests of others’
3 - heroism: “acting heroically by intervening in an emergency to assist an individual in danger”

Sarah = not an attempt to change law but send reassurance and a msg to courts

Question 12

Describe the criticism that the SARAH act 2015 received

Answer 12

• HoL: “a text that would barely muster a pass mark in GCSE legal studies”
• what is its meaning of ‘predominantly / heroically’
• Association of Personal Injury Lawyers: “legislation to protect ‘everyday heroes… already exists… and is therefore a waste of parliamentary time”

Question 13

Does the reasonable man test encourage judge to consider society’s values and the common sense response of ordinary people

Answer 13

• it is criticised since the law is made to appear a product of society as a whole (democratic)?, not to be made by judges personally, so could say it doesn’t encourage them, merely a mechanistic application
• BUT senior judges only drawn from narrow section of society (2018):
  mostly oxbridge, male, white etc

Question 14

Does the reasonable man test provide flexibility so as to be applicable in all circumstances

Answer 14

• has a wide scope - the test applies universally to all accidents on road, at work, in hospital, on premises etc

Criticism:
- test is so vague that it allows judges unfettered discretion, provides little guidance about how injury might be avoided + causes uncertainty for litigants

Question 15

How is the reasonable man test vague and uncertain

Answer 15

• what a reasonable man would do is often uncertain
• often difficulties in establishing the facts required to apply the reasonable man test (how fast was car travelling, was there other traffic, what was the visibility etc)
• reasonable man test is only applied retrospectively + gives little guidance in advance about avoiding liability
• other decisions on breach of standard of care are confined to their own facts + are not precedents
• ‘common practice’ of others is only persuasive evidence of what the standard of care should be
• violations of the criminal law or other codes may also be only of persuasive value that a breach has occurred (but sometimes are rebutted - Barna v Hudes Merchandising)

Question 16

Describe the relevance of criminal law standard of care

Answer 16

• can be v helpful in establishing a breach of duty in tort
• facts found in a criminal court (eg driving speed) can’t be challenged in a civil court - Civil Evidence Act 1968
• some crim law convictions where fault is essential (eg driving w/out due care) in practice will usually determine the civil claim, but not in law
  (insurer thus often provides legal representation for D in crim court)
• breach of statutory duty = only area where crim law standard defines that required by civil law (claimant must show breach of criminal law caused injury suffered)

Question 17

What can we conclude about the standard of care

Answer 17

• proving a breach can be uncertain as depends upon inferences from facts which themselves may be hard to explain
• inferences from these facts are affected by wider social and economic context of the accident
• no mathematical formula which can be applied mechanically to determine whether fault can be found
• standard of care = decision of fact = no precedent + difficult to appeal
• so judges left w considerable discretion in determining liability
• so creates uncertainty, so cases may be settled for lower amount of damages, or some abandoned altogether
• tort struggles to deal w competing policy objectives (corrective justice - moral condemnation of wrongdoers, more openly discussed by judges, AND, distributive justice - a means to compensate injured ppl, v rarely discussed by judges)
• reasonable man test obscures the use of these policy factors

Question 18

Explain some of the reasons for the judicial ability to manipulate the reasonable man test

Answer 18

• descriptions of it reveal artificiality of test
• its an abstract idealised standard which can be seen as absurd because
• no one manages to satisfy it all the time, no one is perfect, ‘one slip is enough’

Question 19

Explain some of the ways that there is judicial ability to manipulate the reasonable man test

Answer 19

• judicial control over the findings of fact (crucial for lawyers to be able to prove fault)
• judicial control over inferences from findings of fact
• judicial control in applying the legal test (reasonable man test, but in what circumstances? (Physique? Age? Intelligence? Temperament?)
  - more subjective the test = more likely D will be excused + claim fail, but can be seen as more moral as takes account of individual + their circumstances more
  - more objective the test (less individualistic) = more likely is to compensate injured person, easier to adjudicate, but less morally just it appears
• judges can manipulate characteristics to form the role model

Question 20

Give examples of the policy factors influencing judges

Answer 20

• administration of Justice
• corrective justice
• loss distribution

Question 21

Describe the first policy factor influencing judges (administration of justice)

Answer 21

• policy of ensuring court can adjudicate more easily + that there’s certainty in law
• if standard applied is v subjective, poss of court being deceived is greater, burden of investigation of court is greater, + ppl won’t know what they must do
• Nettleship v Weston: feared creation of infinite variety of driving standards, were these fears justified? Held - only on standard of care for drivers including ‘L’ drivers

Question 22

Describe the second policy factory influencing judges (corrective justice)

Answer 22

• policy of moral responsibility + punishment of wrongdoers (more moralistic - correcting the wrong thats been done)
• formal tort rule allows liability only if there is fault
• fault rule reflects moral view that only wrongdoers should pay, not innocent, so more subjective approach taken in judging D
• fault rule supports individual responsibility for injuries caused - not wider community responsibility

Question 23

Describe the third policy factory influencing judges (loss distribution)

Answer 23

• policy of community responsibility for loss (believes compensation should be spread between a society at large, a loss is more fairly dealt with if distributed among as many as poss, + thus more objective give view taken when judging D, so not judging him individually but focusing more on just claimants need for compensation)
• supports community responsibility instead of individual responsibility and punishment for loss
• eg loss can be distributed via insurers / manufacturers

Question 24

Describe the consensus surrounding personal injury insurance as a first party insurance

Answer 24

• first party insurance is voluntary in life
• eg many have life insurance / medical / property / accident, disability & permanent health insurance
• but very few have personal injury insurance, very limited cover for most people against personal injury

Question 25

Describe the CI census surrounding third party insurance, in contrast with first party insurance

Answer 25

• third party (tort) insurance, instead is often compulsory
• eg motor liability - any damage to other than the driver
• eg employers liability - for personal injury to their employees
  (Road and work accidents (third party, tort) = 88% of all claims, showing why it’s often compulsory

Question 26

What do the differing concensus’ surrounding first and third party insurances mean

Answer 26

• as first party insurance is voluntary and optional, and only third party insurances are compulsory, you are most unlikely to carry the first party insurance of personal injury insurance
  THUS
  you need to claim in tort if you want compensation for personal injury!

Question 27

How easy is it to apply the loss distribution theory to undermine fault liability in cases of personal injury?

Answer 27

• easy
• 94% of Ds carry liability insurance, rest are large self insurers
• v few claimants carry much insurance against own injury

Question 28

How easy is it to apply the loss distribution theory to undermine fault liability in cases of property damage?

Answer 28

• difficult to apply as both parties have access to insurance, so a lot harder to apply loss distribution theory as who should be the one to pay the compensation? Owner of gas company (if it was gas main damage)?

Question 29

Is it a formal rule of law that the insured must pay for the uninsured?

Answer 29

NO, instead, the formal tort rule requires proof of fault

Question 30

Give some examples of loss distribution

Answer 30

Eg cases of contributory negligence contrast with negligence (a more subjective approach is likely to be taken)

• for eg tired workers are found not con negligent when injuring themselves, but are liable of it when injuring others
• we take into account that claimant is a child & a lower standard of care is then applied eg when crossing road
• Mullin v Richards - no liability for injury caused by play fighting w plastic rulers in classroom when ruler snapped and a shard entered the eye

Question 31

Describe the conflict between the different policy factors (corrective and distributive justice)

Answer 31

• corrective = would say no liability
• distributive = would say liability
  This conflict readily appears where D seems morally not at fault but does have liability insurance
• physical characteristics likely to be taken into account - Mansfield v Weetabix - physical illness (diabetes) considered so no liability as their was no intentional fault (even though D was insured)
• mental characteristics less likely to be taken into account

Question 32

Describe some other cases (other than Mansfield v Weetabix) that illustrate physical characteristics being taken into account

Answer 32

Roberts v Ramsbottom

Haley v London Electricty Board

Question 33

Why are mental characteristics less likely to be taken into account?

Answer 33

Worries about the wide potential for excuses, such as:

• intelligence + experience (McHale v Watson)
• temperament: excitability?
• memory: absentmindedness?
• awkwardness: accident prone?
• BUT, when we move to real extremes of mental deficiency, where proof is easily established & deceit of court v unlikely, these become AS important to courts in cases of liability as physical deficiencies are!
  - Breunig v American Family Insurance
  - Dunnage v Randall