There are three main components of tort of negligence. Duty of care, breach of that duty and damage caused in result of that breach. Breach occurs where the defendant falls below the particular standard of care demanded by the law. Establishing this involves making a value judgement on the defendant’s behavior: ‘It cannot be proved that a person was negligent; one can merely argue that a person was negligent and hope to persuade the judge’ (Cane p). The key issue to be addressed is how and where the courts set the acceptable standard or level of care owed towards one’s neighbors. There are two questions to be considered. How the defendant ought to have behaved in the circumstances—what was the required standard of care in these circumstances?
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When setting the standard of care against which the defendant’s conduct should be measured, the court will most likely always impose an objective standard on that defendant. However, there are situations where it might not. In this essay, there will be a discussion about objective test and why the courts use it very often, if not always.
While applying objective approach the courts will judge on the basis of ”what the reasonable would do in the same circumstances”. This means that the standard of care expected of the defendant is not dependent on certain characteristics and/or capabilities of the defendant; the personal idiosyncrasies of the defendant are largely (although, as we shall see, not completely) irrelevant, as per Glasgow Corporation v Muir . Put simply (except for in a very few, limited, circumstances) the appropriate question is not ‘what could this particular defendant have done?’ but rather ‘what level of care and skill did the activity the defendant was undertaking require?’ Thus, even though certain individuals may, due to certain inherent characteristics (for example, age, experience and so on), be more or less able to take care, the law imposes the same standard of care on everyone . It was seen in the case of Nettleship v Weston [1971] that the defendant cannot (usually) argue against, or raise as a defense in response to, the imposition of liability …show more content…
This is clearly seen in the case of Nettleship v Weston [1971]. In this case the claimant had agreed to give the defendant driving lessons. Due to lack of experience, the defendant lost control of the car hitting a lamp post, which resulted in a knee injury to the claimant. The claimant sued for negligence. The majority of the court of appeal held that all drivers, including those learning to drive, are held to the same standard. The fact that, as a learner, the defendant was clearly incapable of meeting these requirements was irrelevant. This might seem a little harsh in terms of the defendant, who was compared to a person of different/better skillset. However, Mr. Salmon LJ, in dissent, noted, a learner driver cannot owe an instructor a duty to drive with a degree of skill they both know is not possessed (at 705). However, opposing this view point of Salmon LJ, the majority sought to
When setting the standard of care against which the defendant’s conduct should be measured, the court will most likely always impose an objective standard on that defendant. However, there are situations where it might not. In this essay, there will be a discussion about objective test and why the courts use it very often, if not always.
While applying objective approach the courts will judge on the basis of ”what the reasonable would do in the same circumstances”. This means that the standard of care expected of the defendant is not dependent on certain characteristics and/or capabilities of the defendant; the personal idiosyncrasies of the defendant are largely (although, as we shall see, not completely) irrelevant, as per Glasgow Corporation v Muir . Put simply (except for in a very few, limited, circumstances) the appropriate question is not ‘what could this particular defendant have done?’ but rather ‘what level of care and skill did the activity the defendant was undertaking require?’ Thus, even though certain individuals may, due to certain inherent characteristics (for example, age, experience and so on), be more or less able to take care, the law imposes the same standard of care on everyone . It was seen in the case of Nettleship v Weston [1971] that the defendant cannot (usually) argue against, or raise as a defense in response to, the imposition of liability …show more content…
This is clearly seen in the case of Nettleship v Weston [1971]. In this case the claimant had agreed to give the defendant driving lessons. Due to lack of experience, the defendant lost control of the car hitting a lamp post, which resulted in a knee injury to the claimant. The claimant sued for negligence. The majority of the court of appeal held that all drivers, including those learning to drive, are held to the same standard. The fact that, as a learner, the defendant was clearly incapable of meeting these requirements was irrelevant. This might seem a little harsh in terms of the defendant, who was compared to a person of different/better skillset. However, Mr. Salmon LJ, in dissent, noted, a learner driver cannot owe an instructor a duty to drive with a degree of skill they both know is not possessed (at 705). However, opposing this view point of Salmon LJ, the majority sought to