Legal Obligations

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 ...

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...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