Legal Obligations
Having established that the defendant owes the plaintiff a duty of
care (and in this case it is assumed that this has been established),
it will next be necessary for the courts to decide whether the
defendant has breached that duty. This first involves an assessment by
the court of how, in the circumstances, the defendant ought to have
behaved; what standard of care should he have exercised.
This standard is that of the ordinary and reasonable citizen and not
that of the defendant himself: an especially careful defendant will
not be held liable because he fell short of his own high standards,
however, a defendant whose personal conception of what is reasonable
fails to match that of the court will have no defence based on his
belief that he acted carefully. Although the concept of the reasonable
man is well developed and accepted in tort law it is nevertheless a
general and sweeping statement. Sir Alan Herbert said:
'the reasonable man is .. devoid of any human weakness, with not one
single saving vice'
Although this is not quite true, it is difficult for the courts to
create a reasonable, fictional man and I believe it important for them
to take into account social and moral change when comparing the
defendant to this fiction. In practice 'reasonable care' can be
manipulated to produce standards ranging from the very low to the very
high. What is reasonable conduct will always depend on the
circumstances of the case and it is a mistake to rely on previous
cases when deciding this standard.
The standard of care expected of the reasonable man is objective. It
does not take into account the particular ...
... middle of paper ...
...s of breach of duty. The effect of the objective
standard rule is, in some cases, to dilute the idea of individual
responsibility, especially where decisions of policy are evident in a
case. However, to apply a different, variable standard to each
individual would be almost impossible. It is clear that a special
standard is needed when dealing with professionals but in certain
cases it is clear that the true reason behind a finding in favour of
the medical professional is not due to his lack of negligence, but to
that of policy, an idea which is to be found (sometimes unfairly) in
many decisions concerned with breach of duty.
BIBLIOGRAPHY
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Lecture notes
Textbook on Torts - Michael A Jones
Tort Law (4th Edition) - B.S.Markesinis and S.F.Deakin
Essential Tort Law - Richard Owen
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