Chapter 3 Outline answers to essay questions

Duty of care: further issues

To what extent do concerns about ‘defensive practice’ govern the current state of the law regarding duty and standard of care in negligence?

You must define what is meant by defensive practice: that is, the policy concern that fear of tort actions may detrimentally affect the practice of a function, such as medicine, advocacy, social work, or policing.

This must then be put in the context of policy factors affecting decisions about duty of care in negligence. It was memorably cited as a justification for the no-duty decision in respect of some police functions in Hill v Chief Constable of West Yorkshire and more recently in Smith v Chief Constable of Sussex. Arguably it underlies the use of the deferential ‘Bolam test’ regarding the standard of care in medical negligence cases.

Whether or not there is a basis for concerns about defensive practice should be evaluated (see, for instance the Court of Appeal in D v East Berkshire). Then you should consider the extent to which, if substantiated, defensive practice may positively uphold the deterrence objectives of tort and, with emphasis on the current law, the disapproval of any blanket immunities by the ECtHR.