Legal Obligations

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Application Number 99002965

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.  It does not take into account the particular weaknesses of the defendant.  This point is well illustrated by Nettleship v Weston [1971] 2 QB 691 where the defendant the defendant was a learner driver who crashed into a lamppost, injuring the front-seat passenger.  The Court of Appeal held that the standard of care required of a learner driver was the same as that required of any other driver, namely that of a reasonably competent and experienced driver.  The defendants level had fallen below this standard and it was irrelevant that this was due to her inexperience.  The result of this view is that it dilutes the idea of fault based on individual responsibility.  In this case a learner driver was held responsible for the consequences of a lack of care when driving which was, in the circumstances, probably all that could have been expected of her.  How can a person be liable for an act if that person was performing to the best of their ability.  Megaw LJ said that:

‘It is irrelevant that this attributes liability to someone who is not morally blameworthy because tortious liability has in many cases ceased to be based on moral blameworthiness’

Salmon LJ dissented in Nettleship v Weston [1971] 2 QB 691 on the standard of care a passenger can expect from a learner driver on the basis that the duty of care comes from the relationship between the parties involved.  In a case such as this one the passenger (the instructor) knows full well that the driver does not possess the skill and competence of an experienced driver.  This approach can be seen in the Australian case of Cook v Cook (1986) 105 LQR 24 where the driver was both unlicensed to drive and experienced, facts known to the passenger.  The potential harshness of the objective standard can also be seen, and is well illustrated, in Wilsher v Essex AHA  [1986] 3 All ER 801, CA.  Here it was stated that a young, inexperienced doctor is judged by the standards of a competent doctor even though, by definition, he is unable to attain that standard.

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In the case of Nettleship v Weston [1971] 2 QB 691 it is clear that the court is influenced by the fact that the driver was covered by third party insurance.  A finding of negligence allowed the plaintiff to be compensated and the loss to be spread through means of insurance.  This illustrates the tendency for negligence to verge towards strict liability in areas such as road traffic and employer’s liability where the courts see the defendants (or their insurers) as better equipped than the plaintiffs to absorb or shift the losses in question.  Where this is deemed not to ...

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