Legal Standards and Principles

The definition of negligence given by Baron Alderson in the case of Blythe reflects that the standard of care of a reasonable man determines whether there has been a breach of duty or not. According to Alderson, negligence may either be an omission or act that would not have been otherwise committed had the defendant acted like a reasonable and prudent man in ordinary conduct of human affairs. It may also be an act that the reasonable and prudent man would not have committed. The test determining what a reasonable man would have done in the circumstance of the case is objective. The standard of care does not depend on the characteristics or capabilities of the defendant. The concerned question, in limited circumstances, is to determine the level of care and skill the activity that the defendant undertakes requires.

In Philips v Whiteley, the claimant got infected in her ears when she got them pierced in a jewellery store. Her claim was denied as it was held that the expectation could be only that of a reasonably competent jeweler. However, if a person claims to have a special kill, the law requires him to undertake concerned activity with appropriate level of competence. Thus, he is required to show that skill as any ordinary person of that profession to which he claims to belong would display. Following common practice cannot be a defense to escape liability.

The determination of the standard of a reasonable person is objective. It does not vary and does not allow different levels of standards. Lord Macmillan in Glasgow Corporation stated that this standard does not consider the ‘idiosyncrasies’ of the defendant. According to him, the reasonable person is free from over-apprehension and over-confidence. Reasonableness has to be subjectively determine considering the circumstances of the case, contemplation of what the reasonable person would have done and what the defendant would have had foreseen. However, there are other factors that carry more weight, for instance the risk of damage in assessing the defendant act against the reasonable standard of care in the case of Bolton.

Lord Radcliffe stated that negligence law is concerned less about fairness than about culpability. However, there is a legal imposition of the same standard of care even if some individuals may be more or less capable of taking care, due to inherent characteristics. Defendant cannot put up the defense of “did their best” when this falls below the expected standard of care of a reasonable man. This is supported by the case of Nettleship. In the case, the court held that all drivers, even including learners, are treated as having the same standard, which is measured objectively by the expected standard of care possessed by experienced, careful and skilled driver. The standard does

---

1. Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781.
2. Ibid.
3. Kirsty Horsey and Erika Rackley, Tort Law (Oxford University Press 2013) 199.
4. Philips v Whiteley [1938] 1 All ER 566, 569.
5. Kirsty Horsey and Erika Rackley, Tort Law (Oxford University Press 2013) 204.
6. Muir v Glasgow Corporation 1943 SC(HL) 3.
7. Marc Stauch, The Law of Medical Negligence in England and Germany: A Comparative Analysis (Hart Publishing 2008) 31.
8. Muir v Glasgow Corporation 1943 SC(HL) 3.
9. Bolton v Stone [1951] AC 850, [1951] 1 All ER 1078
10. Kirsty Horsey and Erika Rackley, Tort Law (Oxford University Press 2013) 199.
11. Ibid, 200.
12. Nettleship v Weston [1971] CA.
13. Ibid, at 702.

not depend on the defendant’s characteristics or capacities. Even if they were incapable, this factor is irrelevant. Lord Denning stated that the application of this objective standard was just to allocate risk in those activities covered by the compulsory insurance. Megaw LJ gave the reason that if standards are varied, it would cause too much complication. The notion of standard of care of a reasonable person intends to represent average citizens. However, this reasonable person is also the judicial idea of an average citizen, reasonable person has arguably high standard of care. In addition, in the time of insurance-based compensation system, the idea of a reasonable person has become more prudent and also far-sighted. The common law reasonable person relates with the circumstances of a defendant, which were allowed in cases involving defendants who are mentally ill or incapable or have no understanding of their act or omission.

Given that these are narrow exceptions, a defendant may not be able to plead personal failings of knowledge or skill or please they did their best to escape liability. This apparently does not consider the view that the defendant might have been incapable of reaching the standard. It could therefore be stated that the standard of reasonable person may seem too high a standard to be practically possible to meet in every situations. This may present a conflict between the prescribed reasonable standard of care of that of a reasonable, which is labelled as culpa levis in abstracto and prudent person and the reasonable standard attributes of the defendant, which is labelled culpa levis in concreto. The defendant’s ability will affect the levels of his concrete duty against the abstract standard of care of a reasonable person. For instance, the case of Lagunas Nitrate Co., which is a case of equitable wrongs that which demonstrate more significant departures from this abstract standard than the common law traditional position. The courts of equity expect a company director to exercise standard of care of a reasonable person with their level of skill and experience, whereas, trustees are expected to live up to the standard of an ordinary person in making an investment.

Standard of care may also be customised based on the circumstances of the defendant. The determination of the level of standard seems to have moved from the abstract notion of the reasonable man to more concrete notion of duty of the reasonable man. This is supported by the case of Wilsher v Essex Area Health Authority where the court did not held a junior doctor liable after he/she mistakenly inserted an umbilical catheter into the vein of a patient. However, a senior doctor was held negligent for failure to notice the mistake. In this case, Browne-Wilkinson V-C laid down a test that could be tailored most closely to the defendant’s circumstances. According to this test, the experience and knowledge of the concerned doctor must be considered. In respect of this

---

14. Kirsty Horsey and Erika Rackley, Tort Law (Oxford University Press 2013) 200.
15. Donal Nolan and John Davies, ‘Torts and Equitable Wrongs’ in Andrew Burrows (ed.), Principles of the English Law of Obligations (Oxford University Press 2015) 147.
16. Ibid.
17. Keith Owens, Law for Non-Law Students (Cavendish Publishing 2013).
18. Donal Nolan and John Davies, ‘Torts and Equitable Wrongs’ in Andrew Burrows (ed.), Principles of the English Law of Obligations (Oxford University Press 2015) 147.
19. Lagunas Nitrate Co. V Lagunas Syndicate [1899] 2 Ch 407, 428-429i.
20. Donal Nolan and John Davies, ‘Torts and Equitable Wrongs’ in Andrew Burrows (ed.), Principles of the English Law of Obligations (Oxford University Press 2015) 148.
21. Ibid.

case, doctors at the beginning of a posting have lesser experience than experienced senior doctors. This approach was also seen in the case of Moy v Pettmann Smith (a firm). Thus, as regards the duty of the defendant, the criteria of reasonableness may include the consideration of what the particular defendant and not of an average man could be expected to do. Thus, subject to the skills of the defendant, common law and equity require the defendant to be assessed by the standard of a reasonable person with that level of knowledge and skills professed.

The standard of care expected from a skill person cannot be the same as that from an ordinary person. So, professional with expert skills are expected to show the same higher standard of care as other reasonably competent experts in the same field. A person possessing special skills will be liable for failing to apply the skills to the task at hand. This could be done by considering the special knowledge or skill as a part of the circumstances. However, a person with special skills and knowledge may be able to escape liability. The Bolam test is applicable in this regard. In Bolam case, it was observed that a doctor can escape liable for negligence if he complied with accepted practices by an established body of medical experts in the relevant specific medical field. Lord Browne-Wilkinson stressed that an expert opinion could be an evidence of proper and non-negligent practice if it is reasonable and responsible. There must be a logical basis. In case otherwise, expert opinion must be reasonable. The act or omission is measured against external standard of a reasonable person. However, experts and other professionals cannot be bound by standards of a reasonable person, but by those of reasonable professional of that skill. There is no liability in case of uninformed and inexpert character. However, in Chaudhary v Prabhaker, it was held that there is a duty of care in case the defendant was aware of the plaintiff’s reliance on their advice, and had acted on this reliance.

Establishing duty of care may prove easier than establishing standard of care, which might be difficult. For example in medical profession, the question of professional negligence may turn problematic as each surgical discipline may assume a self-regulating characteristic where it sets its own standards. This may create difficulty in finding a balance in law between interests of the medical professionals and adherence to the standards. These kinds of situations raise a question of the discretion of the court to exercise such determination when in fact it may not have the kind or the level of expertise that the body may have. This may present a varying degree of standard of care, which may not sound reasonable and realistic to defendants, who have to constantly adhere to standards established by recognised bodies and also expose to risk of being held liable due to the

---

22. Donal Nolan and John Davies, ‘Torts and Equitable Wrongs’ in Andrew Burrows (ed.), Principles of the English Law of Obligations (Oxford University Press 2015) 148.
23. Moy v Pettmann Smith (a firm) [2005] UKHL 7, [2005] 1 WLR 581, at 62.
24. Donal Nolan and John Davies, ‘Torts and Equitable Wrongs’ in Andrew Burrows (ed.), Principles of the English Law of Obligations (Oxford University Press 2015) 101.
25. Vivienne Harpwood, Modern Tort Law (Cavendish Publishing Limited 2005) 141.
26. Geoffrey Rapp, Tort Law in Focus (Wolters Kluwer 2020) 138.
27. Bolam v Friern HMC [1957] 2 All ER 118.
28. Vivienne Harpwood, Modern Tort Law (Cavendish Publishing Limited 2005) 133.
29. Chris Turner, Key Facts Tort (Routledge 2010).
30. tuart M. White and Timothy J. Baldwin, Legal and Ethical Aspects of Anaesthesia, Critical Care and Perioperative Medicine (Cambridge University Press 2004) 82.
31. Waseem Jerjes, Jaspal Mahil and Tahwinder Upile, ‘English law for the surgeon II: Clinical negligence’ (2011) 3 Head & Neck Oncology 52 (US National Library of Medicine National Institutes of Health)


court option of tailoring the standard depending of circumstance of the case. Therefore, establishing the duty of care and the reasonable standard may not be easy in cases where it is not easy to establish whether an act or omission has caused the damage. The relative varying degree of customised standard sets unrealistic expectation. However, ddetermining liability of a defendant with special skills could be done by considering the special knowledge or skill as a part of the circumstances. The legal obligation will be that of reasonable prudence, however, the person with such special skills or knowledge has to give greater level of attention to avoid injuries than a person with lesser knowledge. The issue that may arise with this determination is in establishing whether the person has that skill or knowledge and whether the liability would increase due to the very fact that the person possesses these skills or knowledge. The same issue consideration could be related with what court held in Phillips case, and it is a matter of concern to ask whether it was fair that the jeweler escape liability when the victim relied on their knowledge and skills regarding piercing of the ears.

The statement of Goddard J in Phillips case does not seem to represent all the principles regarding standard of care, though it cannot be stated that the statement was wrong. Reiterating Lord Radcliffe’s statement in Bolton case, the decision was not fair. There is a legal imposition of the same standard of care irrespective of whether a person is more or less capable of taking care. An alternative argument that the standard of care of a reasonable person is too high may not always apply, especially when in cases where circumstances of a defendant are considered. Browne-Wilkinson V-C’s test of reasonableness is applicable here. The experience and knowledge of the concerned person in the jewellery store, who pierced the ears, should have been considered. This is supported by common law and equity requirement that the concerned person should have been assessed by standard of a reasonable person with that level of knowledge and skills professed. The resolution may lie upon the principle that it is pertinent that a person must have a general duty of ordinary care to avoid acts or omission that a reasonable person would recognise them as creating risks of damage or injuries unreasonably. He must act as a reasonable person considering the information, skill and knowledge he possesses and is not generally known or ordinarily possessed by reasonable people, and considering the knowledge generally shared by the community. Thus, in Phillips case, the court should have had considered this general duty of ordinary care that any person must have to avoid harm to another person. The jewellery story should have had conducted the work in hand as in a manner to avoid creating unreasonably risks of injuries. They should have acted in the standard of a reasonable person with that level of knowledge and skills professed in respect with the conduct of piercing the year. There could be an alternative argument that the skills of the store and expectation from it cannot be placed with that of a professional with expert skills. However, this cannot override the reliance of the complainant of the knowledge or skills of the defendant and the fact that there should have been an appropriate level of competence.

---

32. Geoffrey Rapp, Tort Law in Focus (Wolters Kluwer 2020) 139.
33. Ibid, 143.

Cases

Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781.

Bolton v Stone [1951] AC 850, [1951] 1 All ER 1078

Bolam v Friern HMC [1957] 2 All ER 118.

Lagunas Nitrate Co. V Lagunas Syndicate [1899] 2 Ch 407, 428-429i.

Moy v Pettmann Smith (a firm) [2005] UKHL 7, [2005] 1 WLR 581, at 62.

Muir v Glasgow Corporation 1943 SC(HL) 3.

Nettleship v Weston [1971] CA.

Philips v Whiteley [1938] 1 All ER 566, 569.

Wilsher v Essex Area Health Authority [1987] QB 730, CA.

Books

Harpwood V, Modern Tort Law (Cavendish Publishing Limited 2005),

Horsey K and Erika Rackley, Tort Law (Oxford University Press 2013).

Nolan D and John Davies, ‘Torts and Equitable Wrongs’ in Andrew Burrows (ed.), Principles of the English Law of Obligations (Oxford University Press 2015).

Owens K, Law for Non-Law Students (Cavendish Publishing 2013).

Rapp G, Tort Law in Focus (Wolters Kluwer 2020)

Stauch M, The Law of Medical Negligence in England and Germany: A Comparative Analysis (Hart Publishing 2008)

Turner C, Key Facts Tort (Routledge 2010).

White SM and Timothy J. Baldwin, Legal and Ethical Aspects of Anaesthesia, Critical Care and Perioperative Medicine (Cambridge University Press 2004)

Journals

Jerjes W, Jaspal Mahil and Tahwinder Upile, ‘English law for the surgeon II: Clinical negligence’ (2011) 3 Head & Neck Oncology 52 (US National Library of Medicine National Institutes of Health)

Dig deeper into Legal Evaluation of Negligence with our selection of articles.