Tort Law

Only available on StudyMode
  • Download(s) : 72
  • Published : November 14, 2012
Open Document
Text Preview
Negligence is essentially concerned with compensating people who have suffered damage as a result of the carelessness of others .One of the main ways in which access to compensation is restricted is through the doctrine of the duty of care.Essentially,this is a legal concept which dictates the circumstances in which one party will be liable to another in negligence.Breach of a duty of care essentially means that the defendant has fallen below the standard of behavior expected in someone undertaking the activity concerned ,so for example, driving carelessly is a breach of the duty owed to the road users,while bad medical treatment may be breach of the duty owed by doctors to patients.In each case,the standard of care which could be expected from a reasonable person.This means that it is irrelevant that the defendant’s conduct seemed to be fine to them; it must meet a general standard of reasonableness.Not all careless conduct which causes damage will give rise to an action because to be liable in negligence,there must be a duty to take care and breach of that duty by the defendant causing damage to the claimant as illustrated in Lochgelly Iron Co. v McMullan. The elements of negligence are duty of care,breach of care,causation and that the damage is not too remote.There have been developments to the standard of care in the tort of negligence in recent years to encourage people to take care and discourage actions likely to endanger others. As the test is objective,the particular defendant’s own characteristics are usually ignored.A striking example of this is that the standard of care required of a driver is that of a reasonable driver,with no account taken of whether the driver has been driving for 20 years or 20 minutes,or even is a learner driver.In Nettleship v Weston(1971)the claimant was a driving instructor,and the defendant his pupil.On her third lesson,she drove into a lamp post and the claimant was injured.The court held that she was required to come up to the standard of the average competent driver,and anything less amounted to negligence. ‘The learner driver may be doing his best,but his incompetent best is not good enough.He must drive in as good manner as a driver of skill,experience and care”.The standard of care applicable in ordinary cases,where the defendant is an ordinary person,carrying out a regular and ordinary act,is the standard of care of the ‘reasonable man’ which can be seen in number of cases such as Hall v Brooklands where a reasonable man is an ordinary man,an average man,the man on the Clapham Omnibus. In Glasgow Corporation v Muir(1943)MacMillan LJ concluded that the reasonable man is ‘presumed to be free from both over-apprehension and from over-confidence’. If we analyse this critically,in Roberts v Ramsbottom(1980)the defendant had suffered a stroke while driving and,as a result,lost control of the car and hit the claimant.The court held that he should nevertheless be judged according to the standards of reasonably competent driver.This may seem extremely unjust,but remember that motorists are required by law to be covered by insurance,the question in the case was not whether the driver himself would have to compensate the claimant,but whether his insurance company could avoid doing so by establishing that he had not been negligent.This is also one explaination for the apparently impossible standard imposed in Nettleship.Even so,in a more recent case,Mansfield v Weetabix Ltd(1997),the Court of Appeal took a different approach.Here the driver of a lorry was suffering from a disease which on the day in question caused a hypoglycaemic state(a condition in which the blood sugar falls so low that the brain’s efficiency becomes temporarily impaired).This affected his driving,with the result that he crashed into the defendant’s shop.The driver did not know that his ability to drive is impaired,and there was evidence that he would not have continued to drive if he...
tracking img