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Legal Obligations

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Introduction

Resit Coursework. Obligations II. 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. ...read more.

Middle

The court did not say however, that the defendant could not play cricket on the ground again. It could be said that if it is reasonable to play cricket at all it can hardly be unreasonable conduct for a batsman to attempt to hit the ball for six, which is one of the objects of the game. In this case it seems that the courts have found the defendant liable, but have not put a stop to the cause of the liable action. The severity of the damage is also taken into account by the courts. The more serious the potential damage, the greater the precautions that should be taken, as seen in Paris v Stepney Borough Council [1951] AC 367. Another factor considered by the courts is the defendant's purpose. The social utility of the defendant's activity may justify taking greater risks than would otherwise be the case. This does not mean though, that the purpose of saving life and limb justifies taking any risk as seen in Giffin v Mersey Regional Ambulance [1998] PIQR P34, where the plaintiff motorist crossing a junction on a green light collided with an ambulance crossing against a red light, but was held 60% contributorily negligent. Some risks are unavoidable. Others can only be reduced at great expense. The question that has to be addressed by the courts is at what point does the cost of precautions enable the man not to take them. In Latimer v AEC Ltd [1953] AC 643 the defendants covered a wet factory with flaw with sawdust to prevent their employers slipping. However the plaintiff did slip and injure himself. ...read more.

Conclusion

In Maynard v Regional Health Authority [1984] 1 WLR 634 Lord Scarman said that 'a doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. However, in Matrix-Securities Ltd v Theodore Goddard (1997) 147 NLJ 1847 a lawyer advising in tax matters must exercise the standard of care appropriate to that sector of the profession specialising in tax matters. The ides of special standards does not simply apply to the medical profession. If it is accepted that a referee can potentially owe a duty of care to the participants in the sport that is being refereed (as seen in Smoldon v Whitworth [1997] PIQR P133 where it was held that a referee of a colts rugby match owed a duty of care to a player injured due to a collapsed scrum), then the standard of care will, presumably, be that of a reasonably competent referee in the circumstances. Nonetheless, in practice referees may face some difficult judgements about when precisely to intervene. As with all areas of law the courts face difficult decisions when dealing with all forms 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. ...read more.

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