Law
Duty of Care
Duty of care refers to the legal obligation to act in a manner that avoids causing harm to others. It requires individuals or organizations to exercise a reasonable standard of care to prevent foreseeable harm. Breach of this duty can result in legal liability for any resulting damages or injuries.
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11 Key excerpts on "Duty of Care"
eBook - PDF- Peter Cane, James Goudkamp(Authors)
- 2018(Publication Date)
- Cambridge University Press(Publisher)
These developments in the law relating to Duty of Care have mainly affected liability in the tort of negligence for purely economic loss, that is, loss other than injury to person or damage to tangible property, and economic loss conse- quential on such injury or damage. In the typical case of personal injury (except ‘nervous shock’) or damage to tangible property, foreseeability is, in practice if not in theory, the sole criterion of the existence of a Duty of Care. Therefore, none of the threefold test, the assumption of responsibility test, or the incre- mental approach, is of much importance to the subject-matter of this book. It should also be noted that, whereas Lord Atkin seems to have put forward the neighbour principle as a way of expanding the scope of liability for negligence, the Duty of Care concept is most commonly used in modern cases as a means of justifying a refusal to impose liability for negligence. This brief account of the law indicates that the main function of the concept of Duty of Care is to define the boundaries of liability for damage caused by negligent conduct by reference to what are commonly called ‘policy considerations’. 6 So, for example, for fairly obvious reasons, soldiers owe no Duty of Care to fellow soldiers when engaging the enemy in battle; neither is the army under a duty to provide a ‘safe system of work’ on the battlefield. 7 Until relatively recently, barristers owed no Duty of Care to their lay clients in the conduct of litigation 4 The test originated in Hedley Byrne & Co. Ltd v. Heller [1964] AC 465. 5 Robinson v. Chief Constable of West Yorkshire Police [2018] UKSC 4. 6 The leading analysis of the (staggeringly wide) range of policy factors to which the courts have regard is J. Stapleton, ‘Duty of Care Factors: A Selection from Judicial Menus’ in P. Cane and J. Stapleton (eds), The Law of Obligations: Essays in Celebration of John Fleming (Oxford, 1998).
eBook - PDF- Kim Atkins, Sheryl de Lacey, Bernhard Ripperger, Rebecca Ripperger(Authors)
- 2020(Publication Date)
- Cambridge University Press(Publisher)
Accordingly, the first critical question that has to be answered to determine if a person is liable in negligence for an injury caused to another person is: does a Duty of Care exist? The answer to this will depend upon the character, or type, of relationship between the parties. The courts have identified a range of relationships that are said to give rise to a Duty of Care. In determining whether a Duty of Care exists, the court will examine whether the defendant should have foreseen that their conduct could result in injury to the plaintiff. Over the years, certain categories of relationship have been held to give rise to a Duty of Care: landlord and tenant, solicitor and client, occupier and entrant to private property, and health-care professional and patient. It is easy to see why these relationships give rise to a Duty of Care, as the person owing the duty is in a position to be aware of the various risks to the other party in the relationship, and can take steps to avoid injury. A breach of duty exists where the defendant fails to take reasonable steps to prevent the harm to the plaintiff. The standard of care expected of a defendant is measured by ‘reasonableness’, which takes into account the probability and seriousness of the harm, the burden of taking precautions against the likelihood of harm, and the social value of the activity that causes the harm. This is an objec- tive test, so the intention of the defendant is not important. A person who does their best to avoid the risk but does so incompetently will still be in breach of their duty. However, because it is an objective test, a failure to eliminate a foresee- able and preventable risk may not be negligent if all reasonable steps were taken to prevent harm occurring. Linked to this test is the idea of causation. Even if a Duty of Care exists and there has been a breach of duty, the plaintiff has to prove the negligent act or omission caused damage.
eBook - PDF- Jonathan Morgan(Author)
- 2022(Publication Date)
- Hart Publishing(Publisher)
We explore in the following chapter how such disagreements run through questions of how to define the Duty of Care, and the role of ‘policy’ within it. 153 1 T Weir, ‘The Staggering March of Negligence’ in P Cane and J Stapleton (eds), The Law of Obligations: Essays in Celebration of John Fleming (Oxford, Oxford University Press, 1998). 2 D Howarth, Textbook on Tort (London, Butterworths, 1995) 161–62. 7 Defining the Duty of Care Negligence has an in-built expansionary tendency: it can, unlike nominate torts, potentially protect any interest against careless harm. 1 The colonisation of the entire law of torts by negligence has been resisted, above all, by wielding the duty concept. Denying a Duty of Care means the defendant is not liable even though they carelessly harmed the claimant. 2 That at least is the dominant view today, conceiving duty as the boundary stone of negligence – and by extension of tort law as a whole. Given its vital function, we could expect the Duty of Care to be defined with precision. Yet it has been notoriously resistant to definition. Many courts have tried to explain when a Duty of Care should arise in novel cases. There have been famous attempts to summarise this in a simple formula. Yet the formulations have proved highly controversial. After heavy criticism from both academics and the judges themselves, the formulaic approach has been abandoned. Why these struggles? This chapter examines, first, some of the much-maligned ‘tests’ for duty and examines why they have failed. As will be seen in the first debate, not every commentator accepts that the elements of a test like Caparo are as devoid of real meaning as critics have asserted.
eBook - PDF- Mark Butlin, Noeleen McNamara, Kerrie Anglin(Authors)
- 2021(Publication Date)
- Cambridge University Press(Publisher)
Duty of Care inside and outside of the school 1 Mark Butlin LEARNING OBJECTIVES After reading this chapter, you should be able to: • apply the principles of negligence to a particular situation and ascertain whether or not a school could be found liable • explain who will ultimately be liable in a negligence case using the legal principles of vicarious liability and non-delegable Duty of Care • understand when and where school authorities have used legal defences to avoid liability in negligence • consider the implications of important case law precedents with reference to your own context. INTRODUCTION Duty of Care in an educational context is concerned with the safety and wellbeing of students. It is a term we hear all the time in schools. It is imperative to have a clear understanding and working knowledge of when and where the duty is owed and where it is not. Duty of Care is part of the tort of negligence where typically a student becomes injured on school grounds or at a school event and his or her family wants to seek a remedy. This is usually in the form of financial compensation for the loss suffered and for any ongoing treatment costs. The circumstances in which a plaintiff is likely to proceed and win a case in the tort of negligence is now well established in law. This chapter discusses the Duty of Care and how it operates in schools. The discussion covers the defences used by schools to reduce or avoid their responsibility in such matters. The second half of the chapter outlines several of the significant judicial cases in school law, highlighting what they have decided about the liability and legal position of schools and school authorities. NEGLIGENCE To be successful in a claim of negligence and obtain redress for the loss suffered at the hands of the school or school authority, the plaintiff (usually the student and/or his/her family) has to prove three things.
eBook - PDF- Helen Caulfield(Author)
- 2011(Publication Date)
- Wiley-Blackwell(Publisher)
All occupiers have a Duty of Care to those who are invited to their property. This Duty of Care has also been included in legislation that deals with the responsibilities of those who own property, the Occupier’s Liability Act 1984. 114 Vital Notes for Nurses: Accountability Summary • The Duty of Care is based on the ‘neighbour’ principle. • In healthcare the Duty of Care is between the patient and the health service, including the persons treating that individual. • The Duty of Care can extend to the manufacturers of equipment in relation to the end consumers. • The Duty of Care may be extended to people who are indirectly affected by an event, through nervous shock. • Those who occupy property have a Duty of Care to their visitors in case law as well as in legislation. Concepts: Negligence 115 Case study 8.1: The Duty of Care The legal concept of a Duty of Care was established in the famous 1932 case of Donoghue v. Stephenson . This is often said to be the first case that law students study. The facts of the case are unusual, as the situation often is in negligence actions. A woman and her friend went to a tea shop. The friend bought a bottle of ginger beer which the woman drank. It was produced at that time in glass opaque bottles. She could not see what was in the bottle. She became ill as a result of drinking the ginger beer. She discovered to her horror that at the bottom of the bottle were the remains of a decomposed snail. She sued the manufacturers. The court discussed and clarified that a neighbour principle between the manufacturer and the woman meant that the manufacturer owed a Duty of Care to all its end consumers. The court held that the manufacturers of the ginger beer owed her a Duty of Care to produce an uncontaminated drink. This principle is now the basis on which any dispute over whether a Duty of Care exists is decided.
eBook - ePub- Graham Stephenson(Author)
- 2012(Publication Date)
- Routledge-Cavendish(Publisher)
CHAPTER 2
Duty of Care
INTRODUCTION
The focus of this and the next six chapters will be the tort of negligence, the major tort of the 20th century. Discussion of this area of tort law tends to dominate most academic courses and this is also reflected in the treatment in the textbooks on tort law. Negligence is the tort of all torts, arriving on the scene in any organised form at least, late on in our legal development, but immediately threatening to take a stranglehold on the law of civil obligations. It has been perceived as a danger to the neighbouring law of contract, the uneasy relationship between these two areas of law being a persistent theme in many of the cases, particularly those involving claims for financial harm.1 Its impact on other torts cannot be ignored either, particularly nuisance2 and the rule in Rylands v Fletcher.3It should perhaps not be so surprising that the tort should have developed so rapidly in a post-industrial society, where technological change itself has been so rapid, throwing up new problems on a regular basis, but also at the same time massively increasing the numbers of older problems, particularly road and work related accidents. As society becomes more complex and technologically orientated, product liability claims become not only just more common but also more sophisticated. In addition, as society moves from a largely manufacturing based economy to a services dominated one, there is a consequential increase in problems arising from the provision of poor or inadequate services. The action based on the tort of negligence has been asked to deal with these types of issues more and more over recent years. It has so far had to bear the brunt of claims for accident compensation as was outlined in Chapter 1 and perhaps it is not so surprising that it is groaning under the pressure.4
eBook - ePub- Elaine Pritchard, Richard Reeves(Authors)
- 2013(Publication Date)
- Routledge(Publisher)
However, it should be noted that claims of negligence are the most commonly arising of all the torts for it covers a host of illnesses which may arise through working conditions, accidental injury situations or harm which may arise as a result of medical treatment. All of these areas could well be encompassed within a company’s quality or combined quality/safety procedures. In addition to which, negligence also affords a degree of consumer protection, which is an area with which all quality assurance management systems should be concerned. An additional point to be borne in mind is that, it is not only negligent acts which need to be avoided. People involved with giving professional advice, such as lawyers, accountants and surveyors, need also to be aware of the potential liability they face for any negligent statements that they may make, or advice they may give. As with all civil law, the burden of proof is on the plaintiff. The plaintiff must prove his case on the balance of probabilities. In cases of negligence the plaintiff has to be able to prove the other party was negligent. This is known as fault liability. To be successful in a negligence action, the plaintiff must show the following. 1 that the defendant owed the plaintiff a Duty of Care; 2 there was a breach of that Duty of Care; and 3 loss or injury arose directly as a result of that breach of Duty of Care. The concept of a Duty of Care, was derived from case law rather, than from an Act of Parliament. Similarly exactly what constitutes a breach of that duty and whether or not injury arose directly because of the breach is also governed by case law. As a result the following pages contain an explanation of these terms together with the relevant cases from which they were derived, refined or put to the test. Duty of Care Since the case of Donoghue v. Stevenson (1932) a manufacturer can be sued in the tort of negligence for harm caused by a defect in their product
eBook - ePub- Andrew Mitchell(Author)
- 2008(Publication Date)
- Routledge-Cavendish(Publisher)
not require a contractual relationship between the parties, though often such claims arise where a contract exists (for example, in accident at work claims the employee will be contracted to the employer).Therefore, the tort of negligence is the law concerned with a wrong that one party has committed and which thereby causes another party or parties to suffer harm, loss or injury. Negligence law – which is very largely judge-made – considers whether it is ‘fair’ or appropriate for loss to be shifted from the victim to the person who has caused harm. This is expressed by an award of damages (in the form of monetary compensation) paid by the person who caused the harm (defendant) to the person who has been injured (claimant). Since much of the tort of negligence is underpinned by insurance, with compensation claims made against insured parties such as businesses, some have argued that the law of tort fails in its aim of loss-shifting. Instead, the argument goes, it leads to the practical consequence of loss-spreading, and this undermines the principle of ‘fault’ that lies at the heart of negligence law. Why can this point be made? It is because those who have contributed to an insurance pool are not those who are at fault.DISTINGUISHING TORTS FROM OTHER LEGAL WRONGS
Tort law and criminal law
The comments in Table 13.1 below build on your knowledge of the criminal law (see Chapter 12 ) by providing a basic set of comparisons between tort law and criminal law.The law of tort has been developed by the common law and has relied largely on judicial creativity for its growth. There are relatively few Acts of Parliament in the law of tort, though a notable example of relevance here is the Law Reform (Contributory Negligence) Act 1945. By contrast, while criminal law has also developed through common law, many more Acts of Parliament have been passed in that area of law. A number of criminal law statutes are mentioned in Chapter 12 , though the most significant for your studies are the Offences Against the Person Act 1861 and the Criminal Justice Act 1988
eBook - PDF- Stephen Bottomley, Kath Hall, Peta Spender, Beth Nosworthy(Authors)
- 2020(Publication Date)
- Cambridge University Press(Publisher)
It is one of those terms that the law attaches as an incident of contracts of that class’. 36 The Duty of Care in contract is similar in nature to the duty under s 180(1) of the Corporations Act: that the director exercises the care and skill expected of a person who occupies the position in question. A director also owes a tortious duty to exercise care and skill in the performance of their functions and the discharge of the duties of their office. 37 A director is under a common law Duty of Care and can be liable as a tortfeasor for negligence. 38 If there is negligence in performing a contract, alternative claims may exist in both contract and tort. 39 However, it is possible to contract out of a tortious duty. A director’s Duty of Care and skill to the company is further recognised as an equitable duty. 40 The standard of care at common law and in equity is that of an objective reasonable person in a similar position to the director in question. All formulations of the duty are concerned with reviewing the actions of a director in terms of the performance of a reasonable person, being a director of a company in the same circumstances, in the same position as that director and having the same responsibilities. However, purely personal circumstances are not considered relevant, such as the standard of education or business experience. Daniels v Anderson 41 33 Re HIH Insurance Ltd and HIH Casualty and General Insurance Ltd; Australian Securities and Investments Commission v Adler (2002) 41 ACSR 72, 167 citing Daniels v Anderson (1995) 37 NSWLR 438, 502–504 and Commonwealth Bank of Australia v Friedrich (1991) 5 ACSR 115, 125. 34 See, eg, ASX Corporate Governance Council, Corporate Governance Principles and Recommendations (Australian Securities Exchange, 4th ed, February 2019) https://www.asx.com.au/documents/regulation/cgc- principles-and-recommendations-fourth-edn.pdf, Recommendation 1.3.
eBook - ePubBusiness Law
A Straightforward Guide
- (Author)
- 2014(Publication Date)
- Straightforward Publishing Digital(Publisher)
In addition to common law duty, there is a large body of statutory obligations which the employer has to abide by when protecting its workforce. In relation to accidents and other forms of negligence it is common for employers to sue both in negligence and breach of statutory duty. Employers have a statutory duty to insure against liability, as laid down by the Employers Liability (Compulsory Insurance) Act 1969.Nature of the duty
Although there once existed the doctrine of common employment, in which there was an implied term in a contract of employment that employees accepted risks incidental to their employment, the law has changed significantly.The doctrine of common employment was abolished in 1948 and, as the law has evolved, employers have a personal duty and a vicarious liability towards their employees. Traditionally, the duty is said to be threefold, which was highlighted in the case of Wilsons and Clyde Coal Co Ltd v English (HL 1938), namely “the provision of a competent staff of men, adequate material and a proper system and effective supervision”. The duty is not absolute but is discharged by the exercise of reasonable care and is thus similar to the Duty of Care in the tort of negligence generally. Although most of the cases concern work accidents, the duty extends to guarding against disease and gradual deterioration in health as a result of adverse working conditions. This was illustrated in the case of Thompson v Smith’s Ship repairers (North Shields) Ltd (HC 1984). However, it does not extend to the prevention of economic loss by, for example, advising the employee to take out insurance nor the prevention of injury to health caused by self-induced intoxication.Safe plant and equipment
The employer has a duty to take reasonable care to provide proper plant and equipment and to maintain them so as to keep them in good order. This includes the provision of protective devices and clothing appropriate to the job, and also a warning or exhortation from the employer to make use of such equipment.
eBook - PDF- Rachael Mulheron(Author)
- 2020(Publication Date)
- Cambridge University Press(Publisher)
Yet that is not fatal to a duty to avoid pure economic loss either (as Hedley Byrne itself showed). Plainly, D can be liable to C for negligent misstatement under the Caparo test, where proximity of relationship, rather than reliance per se , characterised their relationship. The presence, or absence, of a contractual relationship. As discussed in Chapter 1 , concurrent duties in contract and in Tort are permissible at law. In Henderson v Merrett Syndicates Ltd , 81 Lord Goff said that ‘an assumption of responsibility [by D], coupled with the concomitant reli-ance [by C], may give rise to a tortious Duty of Care, irrespective of whether there is a contractual relationship between the parties’. A contractual Duty of Care between C and D does not preclude a concurrent tortious Duty of Care. Further, the fact that D owes a contractual duty to X and a tortious Duty of Care to C is perfectly permissible at law: the first duty is defined by the terms of the contract; and the second duty, by the general law (as Lord Nolan noted in White v Jones 82 ). However, merely because C and D are in a contractual relationship does not automatically mean that there is an assumption of responsibility by D and reliance on C’s part necessary to give rise to a Duty of Care on D’s part to avoid C’s financial losses. The court must ask what, pre-cisely. D has contracted to do. According to Lord Goff in Henderson , 83 that is a two-stage process: (1) Has D undertaken to provide relevant advice, information, or services, and if so, did the con-tract expressly or impliedly provide that D was to exercise reasonable skill and care in so doing? If so, then a Duty of Care in Tort is potentially owed. (2) Do the terms of the contract exclude or limit D’s liability for failure to perform such obligations, either carefully or at all? Obversely, the fact that, as between C and D, there is no direct contract does not necessar-ily preclude a Duty of Care from being imposed on D.
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