Duty of care and obligations owed to our customers

Tom Harrington LL B explains “duty of care”, and questions the extent to which driving instructors might breach that duty

“The purpose of the law of negligence is to enable those who suffer loss and damage to recover compensation against those who have accidentally or negligently caused it. However, in cases involving public bodies, by restricting the scope of the duty of care, the courts have been able to limit the extent to which compensation can be recovered”. [1]

The legal liability of a defendant to a plaintiff is based on the defendant’s failure to fulfil a responsibility, recognised by law, of which the plaintiff is the intended beneficiary.

The first step in determining the existence of a legally recognised responsibility is the concept of an obligation or duty; this concept reflects the idea that the defendant is expected to behave in a certain way and that liability can arise only if the defendant has failed so to behave.

All driving teachers should be fully aware of the duty of care owed to their clients, and operate in a manner that is consistent with professional standards and ethics. In the tort of negligence the term used is ‘duty of care’. This and ‘liability’ should not be confused, as duty is only one of the necessary elements for establishing liability.

So, what duty does a driving instructor owe to his pupil and what is that standard? In tort law, the standard of care is the degree of prudence and caution required of an individual who is under a duty of care. A breach of that standard is necessary for a successful action in negligence.

In order not to breach a duty of care, a defendant must generally meet the standard of a ‘reasonable man’, as Alderson B. stated in Blyth v. Birmingham Waterworks.

A reasonable person can be defined as ‘the man on the Clapham omnibus’ per Greer LJ in Hall v. Brooklands Auto-Racing Club. In McFarlane v. Tayside Health Board Lord Steyn describes the term as ‘commuters on the London Underground’.

As teachers of driving we have an onerous duty of care to our customers and must uphold certain standards. We must ensure that the paying public receive the best possible instruction and service from driving instructors.

Skilled professionals?

The general test regarding standard of care would not work in every case examining a tort of negligence. Action or omissions of skilled professionals might lead to a tort of negligence. Due to their special education and certification a higher standard of care is required. This means, eg, that if a car mechanic repairs a car, the standard of care required would not be that of a reasonable person, but that of a reasonable car mechanic.

The majority of instructors are qualified to a standard that is industry recognised. But is that standard ‘professional’ and does it mean that professional standards will always be applied? For services in which customer service is a vital part of the business, good etiquette and manners are hugely important. In an environment of increasing competition between driving schools offering similar products (driver training etc) instructors have a stark choice: professionalize all of their services or watch customers vote with their wallets.

Approved Driving Instructors (ADIs) in GB are check tested at various intervals in an effort to maintain satisfactory standards. Two questions arise here – whether the monitoring process is adequate and whether they (instructors) will continuously apply that consistently high standard of tuition to the paying customer. (Check testing is not yet operational in Ireland.)

Instructors should be persons of the highest integrity and behave in a manner that is conducive to best practices. Where an instructor is a member of a recognised driving instructor association or organisation he will normally be governed by a code of conduct or ethics. In Ireland at present many instructors would be unaware of a code of conduct, only whatever ‘code’ they apply themselves.

Stories abound about the conduct of male instructors towards their female pupils (eg MSA’s NewsLink December 2007 – ‘Groping carrot instructor’). Inappropriate touching, suggestion and innuendo appear to be commonplace. There was a report of a Dublin based instructor called ‘Action Man’, where every lesson included a demonstration (by him) of hand signals - especially the anti- clockwise turning left one to any ample bosomed lady pupils.

One continuously hears of instructors whose dress code and unkempt appearance are the norm. Personal hygiene is poor, and the car is cluttered and lacks a neat and tidy appearance. Amateur instructors, some who are franchisees, fail to maintain a proper dress code – scruffy T-shirt, dirty jeans and runners appear to be the order of the day. Instruction is minimal (sending and receiving mobile phone text messages is more important that trying to teach the poor unlucky pupil) and even at that is downright misleading. Are these “instructors” aware of their legal and moral duty towards their clients?

Admittedly, today the majority of instructors seem to possess a relatively new car that is taxed and insured and displays ‘L’ signs. But, what of the instructor’s car that was refused for test because the oil warning light was on – it only took four and a half pints of oil to top it up and the pupil lost out.

Then the pupil who took thirty lessons only to be told on the morning of the test that the car would not be available to him. Here the instructor was duty bound to advise the pupil well in advance that he was not at the required standard to undertake the test and not at the eleventh hour. Is this the way our industry treats its customers?

Poor timekeeping for appointments and finishing early seem to be common traits of some instructors who take advantage of the pupil. The professional instructor is aware his obligation (and contract). All of the above do not enhance the reputation and good name of professional driving instructors.

While a driving school may not receive many complaints, the damage is done when the pupil first fails to complain, then simply ceases lessons and leaves for a competitor that treats them better. Unless the problem is of a very serious nature, eg sexual offences or failing to provide lessons already paid for, the pupil will rarely complain. Complaining customers are seen as a nuisance or a drain on resources. In fact, managing customer complaints properly can be a valuable opportunity to improve customer service and even retain customer loyalty and achieve further growth.

In law, the concept of an obligation contains a number of elements. First of all, there must be ‘proximity’ between the parties, ie a close connection. This may be closeness in distance, time, relationship or some other connecting factor. Secondly, there must be ‘reasonable foreseeability’, ie the injury must be a consequence which a reasonable person would anticipate as a possible result of the defendant’s conduct.

If the two requirements of proximity and reasonable foresight are satisfied, then a duty of care is owed by the defendant to the plaintiff. Proximity and reasonable foreseeability, therefore, are central to establishing the existence of a duty of care.

In general terms the law requires that reasonable care be taken to avoid injury to those to whom a duty is owed – ‘reasonableness’ being the crucial issue. The standard of behaviour demanded by law is objective in nature. This means that persons who owe a duty are expected to live up to a general standard of behaviour, without regard to their individual ability to attain or exceed the standard. Thus a motorist will be judged by the standard of the reasonable motorist, though his own personal competence may be greater or less than the norm.

The law will, however, have regard to the circumstances, and this may lead to some regard being had to an individual’s limitations or abilities – a child will be held to a standard that can be reasonably expected of a child of his age and development; a person who holds himself out to have specialist skills in respect of the conduct under scrutiny will be held to the standard of the reasonable specialist.

The standard is, nonetheless, objective in nature, as a solicitor, for example, would be judged on the standard of a reasonable solicitor irrespective of whether he was recently qualified or an experienced practitioner.

The majority of driving teachers endeavour to provide a good service and their business depends to a great extent on recommendations. A professional instructor will be fully aware of his duties and obligations and will take all reasonable care, skill and diligence in instructing pupils in all relevant aspects of driver education, training and road safety. He will also ensure that driving tuition is carried out only within the terms of the law, with particular reference to driver licensing and provision of a proper service.

He will be conscious of his attitude, behaviour, demeanour and language etc, the limited space in the car, will avoid contact with any pupil, and will be conscious not to confer the ‘halo’ effect on selected pupils.

Customer service is very much an intangible asset; the customer-focused instructor constantly measures performance and regularly assesses his or her performance, and welcomes feedback. He is continuously aware of his responsibilities and obligations to his paying customers, and values their custom. He treats them with respect and dignity, and behaves in a professional manner.

Finally, he will promote the development and growth of professional driver education and will maintain and enhance the reputation and good name of all professional driving instructors.