Chapter 8 Pointers to 'pause for reflection' and 'counterpoint' boxes

Breach of duty: the standard of care

Page 237

The apparent inconsistency between Nettleship and Roe is that in both cases you have a defendant whose actions have clearly harmed the claimant in circumstances in which the defendant can genuinely say that they were not culpable. Neither the learner drivers nor the medical professionals in Roe could have done anything differently or, more specifically, to avoid being at fault. And yet we seem to get different answers.
In fact, Denning LJ may not be adopting such a different approach here. In both cases he is thinking about who should bear the loss. While in Nettleship although the claimant is found to be blameworthy the loss would fall on the insurers, in Roe liability would take money away from the NHS – money which might otherwise be used for other patients and treatments.

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