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Under the second element of the tort of negligence, the relevant question is whether the conduct of D fell below the standard of care which the law expects of D, and so constitutes negligent behaviour. This enquiry necessarily involves a two-stage analysis: (1) setting the standard of care against which D's behaviour should be judged (a question of law); and (2) deciding whether D's conduct met, or fell below, that standard (a question of fact). This chapter considers the first enquiry, while Chapter 7 considers the second.
INTRODUCTION
Reasonableness, not perfection
The requisite legal standard
The law of negligence imposes a reasonable standard of care on D, and not a standard of perfection (the latter would, if permitted, impose a form of strict liability). Fixing the requisite reasonable standard of care in any given case is a question of law.
That proposition was espoused in the seminal judgment of Lord Atkin in Donoghue v Stevenson: ‘[y]ou must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’. In Bolton v Stone too, the House of Lords remarked that, ‘[t]he standard of care in the law of negligence is the standard of an ordinarily careful man’ – or an ordinarily careful cricket club, in that case. The synonymous phrases of ‘ordinary care’, ‘proper care’, or ‘prudent care’, were all used in Bolton v Stone to describe the standard which the law expects of D. That ordinary careful adult has traditionally been equated to the person ‘on the top of the Clapham omnibus’ (per Bolam v Friern Hosp Management Committee).
What the law of negligence does not impose upon D is a requirement that he meet a standard of perfection, i.e., a level of conduct which is so unattainably high that breach is inevitable, because even reasonable conduct could not satisfy such a standard. The reality is that mistakes, errors of judgment, and acts and omissions falling short of perfection, commonly do occur in any endeavour of life – but they do not represent breach, and negligence, unless they fall below what would be expected of a reasonable person in D's position. As the Privy Council endorsed, in Hamilton v Papakura DC (NZ), the law does not impose ‘an unattainable standard that guarantees against all harm and all circumstances’.
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