Tort Of Negligence Essay

1. Introduction

There are four elements in the tort of negligence: duty of care, breach of duty, proximate cause and harm or damage that is attributed to the breach of duty. Negligence is the breach of duty to take care, wherein breach is considered on the basis of the standard of care required.

Defendants cannot take an excuse in negligence cases that they did not have the requisite skill or knowledge which would have allowed them to take more care, as also explained in the maxim imperitia non exculpatur. The question that arises is that what should be the standard of care that is expected from the defendants. In the majority of cases, the answer to the question is the objective standard of care because the courts usually apply the objective

In this case, the defendant was held to be not liable for negligence because any other reasonable race track operator would have acted in the same way. Similarly, in Glasgow Corporation v Muir, the defendant was held to be not liable for negligence because he had acted as a reasonable person would have by allowing the claimants entry into his tea room when the weather was bad

Thus, the objective standard of care will vary from case to case. There are cases where the standard of care and skill is higher because the defendant is a member of a particular profession or holds out as having certain skill sets. However, in such cases also, the court uses the objective test for standard of care, where the court applies a standard of care that can be expected from a prudent member of the same profession or a prudent person having the same skill sets as the defendant. The next set of cases will demonstrate how common law has managed to apply the objective standard of care over varying circumstances or kinds of defendants in order to ensure that the standard of care is not a technical one but something that can be flexibly moulded to fit different situations.

In cases of medical negligence, the courts have applied the objective standard of care to hold the defendant liable for negligence if his conduct or actions fall short of the standard of care that would be taken by reasonable or prudent members of the profession. In Bolam v Friern Hospital Management Committee, the court laid down what is called the 'Bolam test'. This is applied to defendants who are professionals and the purpose of the test is to apply the objective standard of care to the defendant based on the reasonable