(P.188) (b) The standard of care

Since Vaughan v Menlove,⁸⁰ the general standard of care imposed by the tort of negligence has been the objective standard of the reasonable person, but there are some qualifications on this where the category of person to which the defendant belongs (or professes to belong) requires either a higher or a lower standard of care than that expected of people generally.

Most importantly, the standard expected of professionals is the standard of a reasonable professional of the speciality in question, this being justified on the basis that one can expect more of those who profess special skill than those who do not.⁸¹ In practice, a defendant will often bring forward expert evidence to the effect that his conduct conformed to the standard required by ‘a competent body of professional opinion’(the ‘Bolam’ test),⁸² and this argues very strongly against a finding of negligence, though the courts are entitled to find that a current professional practice is not ‘reasonable or responsible’.⁸³ The Bolam test is, therefore, both more and less demanding than the ordinary standard of the reasonable person. Conversely, English law has accepted that the standard of care may sometimes be lowered, notably as regards children, where the standard is of the reasonably prudent child of the age of the particular defendant in the situation.⁸⁴

Another key example of the way in which English courts have nuanced the standard of care according to the category of defendant may be seen in their attitude to drivers’ negligence. Here, the standard is reasonable care required of drivers generally, and this standard is not lowered for a learner driver,⁸⁵ a strict approach which Lord Denning MR justified by the presence of compulsory third party insurance.⁸⁶ How far can this objectivity go? In Mansfield v Weetabix Ltd. a driver, unaware of a condition which caused his brain not to function properly yet not fully unconscious, suffered a series of minor collisions before crashing into the plaintiffs’ shop.⁸⁷ In these circumstances the Court of Appeal held that a driver should not be liable in negligence where a disabling event occurred in a gradual rather than sudden manner provided that the driver is unaware of it occurring.⁸⁸ For Leggatt LJ, ‘the standard of care that [the defendant there] was obliged to show in these circumstances was that which is to be expected of a reasonably competent driver unaware that he is or may be suffering from a condition that impairs his ability to drive’.⁸⁹ To take any more objective a view would be to impose strict liability.⁹⁰

Finally, is the standard of care higher where a particular (and reasonable) expectation is induced in a victim (or others) by a defendant’s behaviour? For example, where a manufacturer represents that his product is particularly safe (owing to some special feature) does this increase the standard of care as compared with the standard applicable to manufacturers generally? While it has been said (in the context of the lowering of (p.189) the standard in the context of a learner driver) that a claimant’s actual or reasonable expectations as to a defendant’s competence are irrelevant to the standard of care in the interests of certainty,⁹¹ the representation of a product as ‘absolutely safe’ and ‘positively needing no preliminary tests’ has been held relevant to the question of breach where it caused injury in normal use.⁹²