This is an extract of our Negligence document, which we sell as part of our Tort Law Notes collection written by the top tier of Oxford students.
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Negligence D owes duty to C ?D breaches it? C suffers loss/damage ? causation (but for, remoteness, within scope of D's duty) = liability
1. Standard of care
Objective Test- would a reasonable person undertaking the activity have foreseen a risk arising from it?
o Nettleship v Weston-learner driver but standard of care applied was the same as for
all other drivers.
= Reasoning: shouldn't deviate from standards applied by criminal law; insurance; practicality - shouldn't owe different duty to people depending on whether they know of her status. Variations a) Children - typical child of D's age (risk of significant PIreasonably foreseeable to a child of D's age) o Mullin v Richards- P suffered injury to her eye when plastic ruler broke during mock sword fight at school. Held:objective test of foreseeability but question for the judge is whether reasonable & ordinarily prudent girl of D's age in that situation would have realised her actions gave rise to risk
= Alternative - bring action against organisation/individual responsible for supervision - will need to show failure to exercise due care to supervise b) Sporting events (spectator/fellow sportsman)-person attending the game assumes certain risk of damage caused by sportsman (reasonable expectation of care varies) o Blake v Galloway -5 teens threw rigs, 1 got eye injury. No breach b/c participation
= tacit consensual agreement w/ rules of the game. Breach would require more than simple error of judgment or lack of skill.
? NB:courts are aware of concern that, due to compensation culture, some forms of recreation will be abandoned b/c risk of liability associated w/them. SO there's too much emphasis on safety to the detriment of valued risk taking. Perry v Harris(bouncy castle kid injury) sends a message that law on negligence doesn't set unrealistic standards for everyday activities. Emphasis is on a reasonable parent, rather than contents of 'official' docs&
guidance related to equipment. c) Special skill -ordinary man exercising/professing to have that special skill (level of experience irrelevant) o Bolam's test: D isn't guilty if he acted in acc w/practice accepted as proper by responsible med body skilled in that particular art.
? But applied in such a way that court's judgment was replaced by D's medical expert opinion, as long as it was found honest and responsible; i.e. many aspects of med negligence have been Bolamized (McDavies) ?
wherever tricky issues arose re standard of duty of care in med context, habitual response of courts was to avoid making own judgment. Bolitho clarified that final judgment lies with the courts. o Bolitho v City of Hackney Health Authority (1998) - boy suffered cardiac arrest, died in hospital, questioned ifdochad attended sooner would she have incubated & if it would have helped; held question of whether a professional has done all that could be reasonably expected of him islegal not professional one. o Wilsher v Essex Health Authority - lack of D's experience doesn't provide an exception to objective standard - it will instead be judged in acc w/the post which D occupies. Here, D was at neonatal specialist unit = high standard of care.
? NB: Where med opinions on D's negligence conflict, apply Bolam?McNair J: D isn't guilty if he acted in acc w/ practice accepted as proper by responsible body of medical men skilled in that particular art, merely because a body of opinion would take contrary view.
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