LAW 203 Tort Law: Application of the Reasonable Person Test

This essay provides a critical examination of the 'reasonable person' test in tort law, focusing on its application within the contexts of either sports or medicine. It begins by outlining the foundational principles of duty of care as established in Donohue v Stevenson, highlighting the concept of 'neighbor' and the potential for negligence claims. The essay then delves into the specifics of medical negligence, emphasizing the importance of establishing harm as a direct consequence of an action or inaction. The negligence test, involving duty of care, breach of duty, and foreseeable harm, is detailed. A significant portion of the essay is dedicated to the medical duty of care, the Bolam test for breach of duty, and the challenges in establishing causation. The essay concludes by summarizing the three-stage test for medical negligence and emphasizing the need for medical professionals to adhere to appropriate standards and seek assistance when necessary, especially during training, to ensure public safety. The essay also briefly touches on the availability of practice guidelines and the implications of deviating from accepted practices.

Focusing on the “reasonable person” test in tort law, critically examine the application of
this test in the context of either sports or medicine.
Introduction: The principle related with duty of care has been provided by the court in Donohue
v Stevenson (1932). In this case, it was held by the court that a general duty is present which
requires that reasonable care should be used for avoiding any foreseeable injury to any person
who may be treated as 'neighbor'. The brief facts of this case provide that a woman drank a
ginger beer bottle and she found a decomposed snail in the bottle. Consequently, the woman fell
ill and she initiated proceedings against the manufacture of the drink. It was decided by the court
that the manufacturer of the drink was negligent as a result of its failure to make sure the safety
of the woman in the process of production. While delivering this verdict, the court ignored the
fact that ginger beer had not been purchased by the woman herself, but it was purchased by a
friend of her. As a result of this verdict, it has been recognized that there is a general duty of care
in favor of the neighbor. Regarding the date of care, a neighbor has been described as the person
who can be reasonably considered to be so closely and directly affected by an act. In such a case
it is regardless, who had purchase a bottle of ginger beer as it was rational that any person, who
consumed the beer, would have the same fate and therefore can be considered in view of the
'neighbor' principle.
In this way, it is provided by the law that wherever there is a breach of duty of care, it is probable
that the party may be held accountable for negligence. In this context, medical negligence is also
treated as a part of the tort law.1 The notion of harm is a significant consideration in establishing
negligence.2 The reason is that a large number of claims under the law of tort for medical
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negligence remained unsuccessful as they are not able to establishing the court that harm
suffered by the party was the direct consequence of an action or the failure to act.
Negligence test: for the purpose of deciding the presence of negligence, there is a three stage test
that can be used for this purpose. Therefore the procedure depends on the establishment of the
fault of the hospital or the doctor etc. The purpose behind granting compensation to the claimant
is to put the claimant in the similar position where it would have been if it had not suffered the
harm caused by negligence of the other party. The monetary value will not only be decided,
keeping in view the actual expenses that have been incurred by the claimant (including loss of
earnings), but also by considering the loss of facility suffered by the claimant and the pain and
suffering of the claimant caused as a result of injury. Similarly, there are certain other
philosophical objectives behind the promotion of accountability and making sure that the persons
who are at fault, should be deterred from the future acts of negligence by making them pay
compensation.
Therefore, the elements of the duty can be described as follows:
1. A person should owe a duty of care.
2. After establishing the duty of care, a breach of duty should be there.
3. Reasonably foreseeable harm should have been suffered as a direct consequence of such
breach.

Medical duty of care: A special relationship exists between a physician and the patient. For
example, most of the anesthetists do their job in hospital environment and generally do not have
the patients being straight admitted in their care. Whenever a patient has been admitted in a
hospital, it results in the creation of a duty of care association.3 Such a relationship is applicable
in case of any doctor who gets in touch with the patient and not only the team admitting the
patient. Therefore, the medical law academicians have argued that all the patients that the doctors
owe a duty of care towards all the patients who are handled by them in their professional
environment and not only by the doctors with whom the patients come in contact but also by the
doctors who have been employed for providing care to the patient. For instance, a doctor owes a
duty of care towards the patient who is having cardiac arrest in the corridor of the hospital from
where the doctor happens to be passing and provision of help under the circumstances can be
anticipated, and may not be treated as good Samaritan action.
Breach of duty: the breach can be established where the practice is adopted by the doctor did not
meet the suitable standard. The threshold of rational person or any ordinary person who has been
placed under similar circumstances is generally applicable in most of the cases under the tort
law. However, in cases involving a potential violation of professional duty, this standard has
been really interpreted as the standard of comparable professional practice.4 A significant case in
this regard is Bolam v Friern Hospital Trust. In this case there was a patient who had suffered
fractures during ECT treatment. It was alleged by the patient that there was negligence in care
under anesthesia because the patient was not administered muscle relaxation for the process and
was not warned or restrained regarding the risk of bone crack. However in this case it was held
by the court that the patient was unsuccessful in establishing negligence. The reason was that
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there was evidence available with the court according to which, at the time it was not a
widespread observance that muscles relaxation should be administered as they were divergent
views present regarding the benefits of muscle relaxation that need to be balanced against the
increase in the risks of relaxant.5 The other party claimed that if a doctor had acted according to
the practice that was treated as being acceptable by a responsible body of doctors, it was
adequate and the claimant was to demonstrate that under similar circumstances, no rational
doctor would have worked in the same way. However, the Bolam standard faces criticism as it
significantly relies on expert evidence by the same test is used in case of further professions
where negligence is being considered.
It is claimed that the existence of the opinion that is in support of the actions of the doctors is in
favor of medical profession as it hangs over the responsibility to decide negligence again on the
same professionals. The support provided by well-known members of the profession regarding
your procedure debatably makes it uncomplicated to shield a claim related with the breach of
duty. However, in cases related with medical negligence, the Bolam test is still used frequently
even if it is not definitive. The reason is that in subsequent cases, the idea has been doubted
according to which an acknowledged standard of care has to be judged by the doctors remarking
on the standards of practice and it may be a part of the role played by the court.
At this point, it needs to be mentioned that the developments made in medical technology takes
some time to be spread. Therefore it is not possible to immediately put into practice, every new
development.6 For example, a patient had sustained brachial plexus injury as a result of
remaining in one position for a long time. There was an article which had been published six
months earlier and described such a complication. However, the article was not read by the
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anesthetist and was not aware regarding its implications.7 However, the court will not arrive at
the conclusion regarding the breach of duty of care towards the patient in such a case.
In the same way, the error of judgment does not necessarily mean that there is a breach of duty.
It can be said, only under the conditions where the doctor failed to act with the degree of care
that can be expected in case of a reasonable competent professional. This position is particularly
relevant in case of the doctors in training as the standard is that which is expectable of a doctor in
same grade of the specialty or unit. There is also an assumption in this regard that there needs to
be a public expectation of safety and the doctors undergoing training are required to act
according to the standard of the great that they are operating in.8 As a result, there are no
concessions available for the lack of relevant experience. It is expected that on the first day itself,
the doctor should work according to the same standard of public safety as the doctor who is on
the last day of that post. The dissimilarity that may be present in the performance of the two
doctors is related with the degree by which the new doctor can be expected to consult and seek
the support for compensating the absence of skill or knowledge and the level to which the new
doctor expects to be supervised.
Harm and causation: it may be difficult to establish causation because it requires to be
established that 'but for' the actions or inaction of the doctor, the harm would not have taken
place. Under these circumstances, it is not surprising that the claims related with medical
negligence generally fail as a result of the inability in establishing causation because generally
there a number of possible explanations related with the outcome. However, if it is possible to
establish that the breach can be described as a significant contribution in the damage or if it is
more likely that the damage was the result of negligence as compared to any other reason, it is
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generally considered to be sufficient. However in some cases, as a result of the lack of any other
reasonable explanation regarding the phenomenon, the notion of 'res ipsa loquitur' may be
applicable.9 This type of situation will be applicable in case of the procedures that have been
performed on the wrong limb or side. For example brachial plexus block and if damage results,
then the causation can be understood to be recognized unless it can be shown by the defendant
that another reasonable explanation is also present.
Conclusion: Medical negligence can be described as a three stage test. According to this test,
medical professionals have a duty of professional care towards the patients and as a result of
such violation of duty, any damage should have been suffered by the patient. In order to bring a
successful claim under medical negligence, it is very significant that all the parts of this test have
been satisfied. According to the civil considerations of negligence, it is required that the doctor
should have acted according to an appropriate standard generally, but not solely decided by the
standards of the peers while in case of criminal negligence, the standard of practice, should have
resulted in causing serious harm as a result of the actions that can be treated as completely
negligent or incompetent.10 As a result of the greater availability of practice guidelines that can
assist the court, the implications and justifications for any deviation from accepted practices
should always be considered if any harm has been caused to the patient. At the same time, the
doctors in training should also keep in mind that the law expects them to seek assistance and
advice in cases where they do not have the experience for preserving public safety.
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Bibliography
Christian Witting, ‘Duty of Care: An Analytical Approach’ (2005) 25 Oxford Journal of Legal
Studies 33
Christian Witting, ‘The Three-Stage Test Abandoned in Australia — Or Not?’ (2002) 118 Law
Quarterly Review 214
Ian Malkin and Tania Voon, ‘Social Hosts’ Responsibility for Their Intoxicated Guests: Where
Courts Fear to Tread’ (2007) 15 Torts Law Journal 62, 79–81
Jane Stapleton, ‘Comparative Economic Loss: Lessons from Case-Law-Focused “Middle
Theory”’ (2003) 50 UCLA Law Review 531
Jane Stapleton, ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’
(2003) 24 Australian Bar Review 135
Peter Cane, ‘Another Failed Sterilisation’ (2004) 120 Law Quarterly Review 189
Case Law
Cattanach v Melchior [2003] HCA 38
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54
Harriton v Stephens [2006] HCA 15
Pyrenees Shire Council v Day [1998] HCA 3