Model Answer
0 min readIntroduction
The law of torts deals with civil wrongs that cause harm to another, leading to legal liability. Negligence, a significant component of tort law, arises when a person fails to exercise the level of care that a reasonably prudent person would have exercised under the same circumstances. This ‘reasonable person’ standard isn’t absolute; it’s flexible and adapts to the specific context and the skills of the individual involved. The statement "A goldsmith putting earring to woman's ear does not require as much care as a surgeon performing surgery on the ear of woman" aptly illustrates this principle – the degree of care expected varies directly with the potential risk and the expertise demanded by the activity.
The Standard of Care in Negligence
The cornerstone of negligence is the duty of care. Once established, the defendant must meet a specific standard of care. This standard is typically defined by the ‘reasonable man’ test – what would a reasonably prudent person do in similar circumstances? However, this is a broad guideline, and the standard is adjusted based on several factors.
Factors Influencing the Degree of Care
Several factors influence the degree of care required. These include:
- Nature of the Activity: More dangerous activities demand a higher standard of care.
- Foreseeability of Harm: If harm is reasonably foreseeable, a higher degree of care is required to prevent it.
- Special Skill or Expertise: Individuals possessing specialized skills (like doctors, engineers, architects) are held to a higher standard than those without such skills.
- Relationship between Parties: Certain relationships (e.g., doctor-patient, teacher-student) create a heightened duty of care.
Professional Negligence and the Bolam Test
When dealing with professionals, the standard of care isn’t simply that of a ‘reasonable person’ but of a ‘reasonable professional’ in that field. The landmark case of Bolam v Friern Hospital Management Committee (1957) established the ‘Bolam test’ for medical negligence. This test states that a doctor is not negligent if they have acted in accordance with a practice accepted as proper by a responsible body of medical opinion, even if other doctors hold a different view. This test has been extended to other professions as well.
Applying the Principle to the Goldsmith and Surgeon Example
The initial statement highlights this difference perfectly. A goldsmith performing a relatively simple procedure like inserting an earring is expected to exercise ordinary care – ensuring the earring is clean, the instrument is safe, and the procedure is performed without undue force. The risk of serious harm is low.
Conversely, a surgeon performing surgery on the ear involves a complex procedure with a significantly higher risk of serious complications (infection, nerve damage, hearing loss). Therefore, the surgeon is held to a much higher standard of care. They must possess the necessary skill, knowledge, and experience, follow established medical protocols, obtain informed consent, and exercise meticulous attention to detail. Failure to do so constitutes negligence.
Illustrative Table: Comparing Standards of Care
| Profession | Activity | Standard of Care | Potential Risk |
|---|---|---|---|
| Goldsmith | Earring Insertion | Ordinary Care – cleanliness, safe instruments, gentle procedure | Low – minor irritation, infection |
| Surgeon | Ear Surgery | High – specialized skill, knowledge, adherence to protocols, informed consent | High – infection, nerve damage, hearing loss, complications from anesthesia |
| Driver | Driving a Car | Reasonable Care – obeying traffic laws, maintaining vehicle, attentive driving | Moderate – accidents, injuries |
Recent Developments & Considerations
While the Bolam test remains influential, it has faced criticism for potentially shielding negligent professionals. The Montgomery v Lanarkshire Health Board (2015) case in the UK clarified the duty to provide adequate information to patients, emphasizing patient autonomy and informed consent, adding another layer to the standard of care for medical professionals.
Conclusion
In conclusion, the degree of care required under the law of tort is not a fixed standard but a flexible one, tailored to the specific circumstances. The ‘reasonable person’ test serves as a baseline, but it’s significantly adjusted based on the nature of the activity, the foreseeability of harm, and, crucially, the skill and expertise of the individual involved. The goldsmith and surgeon example perfectly illustrates this principle – higher skill and greater risk necessitate a correspondingly higher standard of care to avoid liability for negligence.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.