Chapter 11 The Tort of Negligence - OED-update - Oxford University ...

Chapter 11 The Tort of Negligence 363
also establish that the defendant broke his duty of care. He must prove that the defendant
did something that a reasonable man in the circumstances would not have done, or
that the defendant failed to do something that a reasonable man in the circumstances
would have done.
Standard of Care
The standard of care is an objective test. The defendant must act with the degree of care
and skill expected from a reasonable person. It is no defence for the defendant to claim he
is inept or unskilled. A learner driver owes the same objective standard of care to his passengers
and other road users as every other driver. His lack of experience is not taken into
account, and the standard of care he is judged by is the same as that of a competent driver.
Nettleship v Weston (1971)
Facts: The claimant agreed to teach the defendant to drive. On the third lesson the defendant
hit a lamp post and the claimant was injured.
Decision: The duty of care that a learner driver owed to other passengers and the public was
the same objective standard as any other driver. The claimant was liable regardless of the fact
that she was an inexperienced driver.
Standard of care owned by skilled defendants
The standard of care expected by professional persons is the standard that a reasonably
competent person in that profession would show. If a defendant claims to have special
skills, then he is expected to act to the same standard as a person with those skills.
Phillips v Whiteley Ltd (1938)
Facts: The claimant contracted a disease after having her ears pierced by the defendant.
Decision: The defendant was not liable because the standard of care required by the defendant
was that of a skilled and competent ear piercer, not a medical practitioner. The defendant
had met the standard required.
The defendant is judged on the level of qualification claimed, not on the amount of experience
he has. A defendant who has just qualified and started in a job will be expected to
show the same level of care as a competent person holding that post. In Wilsher v Essex
Area Health Authority (1987) the House of Lords stated that a doctor should be judged by