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The Final Consideration Must Be The Perspective Of The Analysis. The ...


The final consideration must be the perspective of the analysis. The evaluation of this must be reasonably positive as it is certainly logical for a defendant to be judged according to the standards of the reasonable persona and it is also logical that the court consider what it would have been reasonable for the defendant to do by ways of preventative cure at the time of the incident rather than at the time of the hearing. The one criticism that can be levelled is at the decision of Nettleship [1984]. It is certainly arguable that someone who is incapable of reaching the standards of care that are required should not be held liable when those standards are not reached.
The difficulty though arises when an alternative is sought because apart from exempting the incompetent from liability, a policy that could certainly be attacked as being unjust, there does not appear to be another way of dealing with this part of breach of duty. As such, as unsatisfactory as it may appear, the current tests must be considered to be appropriate in the circumstances. If there is a scope for remedy then it should be through other avenues, for example a policy decision to require an individual to attain that standard before being permitted to engage in that activity. Indeed in the case of Nettleship it could be argued that to allow a learner to drive without expert supervision is an activity that should be limited by law. This is not the function though of the courts in evaluating duty of care situations.

CONCLUSION
In assessing whether the current rules are satisfactory consideration must always be had to the alternative and given the difficulty of balancing clear rules with the factual centre of each case and the number of individual characteristics that appear, the logical conclusion is that while not perfect, the current rules meet the goals and aims in a manner that is satisfactory if not complete. The area of law is n ever-expanding one and as such has the major advantage of being able to retain a significant degree of fluidity and can adapt to new situations and a relatively fast rate rather than stagnating over past inaccuracies.
BIBLIOGRAPHY
Blyth v Birmingham Waterworks Co (1856)11 Ex 781
Bolitho v City & Hackney Health Authority [1998] AC 232
Bolton v Stone [1951] AC 850
Donaghue v Stevenson [1932]AC 562
Latimer v AEC Ltd. [1953] AC 643
Maynard v Midlands Regional Health Authority [1984] 1 WLR 634
Nettleship v Weston2 QB 691
Paris v Stepney Borough Council [1951] AC 367
Roe v Minister of Health [1954] 2 QB 66
Watt v Hertfordshire County Council [1954] 1 WLR 835

‘Tort Law'R Bagshaw/N McBride
Published by Longman Press
‘Introduction to Law'P Harris
Published by Longman Press
‘Tort Law Text and Materials'M Lunney/K Oliphant
Published by Oxford University Press
‘Tort Law'F Quinn/C Elliott
Published by Longman Press
‘Establishing Breach of Duty'
Ed. L.M.

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