Duty of Care

Duty of care

In tort law, a duty of care is legal obligation imposed on an individual requiring a standard of reasonable care while performing any acts that could foresee-ably harm others. The courts had decided that a duty should be owed, E.G road accidents, bailments or dangerous goods. The neighbor test has been made to expound such a general test, the neighbor principle means that you must take reasonable care to avoid acts or omissions which you can reasonably foresee, would be likely to injure your neighbor. With the term 'neighbor' its meant people who are so closely and directly affected by your act, E.g drivers and road users, doctors and patients. The neighbour principle was established in the case of Donoghue v Stevenson, this case was about a snail in the ginger beer bottle, its where two friends went out for a drink, friend of Mrs Donoghue ordered for a drink, as Mrs Donoghue started to drink from the ginger beer bottle a contaminated snail fell out of it, therefore Mrs donoghue suffered several injuries, Mrs Donoghue had no direct or indirect claim against the manufacturer based on contractual obligations because she did not purchase the product but yet she sued the manufacturer.

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Now the requirements are it that must be satisfied before a duty of care is held to exist were laid down in Caparo Industries v Dickman. There are three elements, these are; (a) foreseeability of the damage; (b) a sufficiently 'proximate' relationship between the parties and (c) it must be fair, just and reasonable. The claimant has to show these three elements in order there to have a duty of care. Foreseeability means whether a hypothetical 'reasonable person' would have foreseen damage in the circumstances. There is no duty of care if the damages are not reasonably foreseeable, the case of Kent v Griffiths is where the claimant was an asthmatic person, she suffered from an asthma attack, there was called for an ambulance but it arrived 40 minutes late. In this case foresight was established but in the case of Bourhill v Young where a pregnant woman suffered psychiatric harm after walking onto the scene of a motorcycle accident, she was deemed not to be a forseeable victim, having not been in immediate danger of physical harm, but she lost her baby. In this case there was no duty of care because the claimant was unforeseeable.

Proximity means that there must be legal proximity, i.e. a legal relationship between the parties from which the law will attribute a duty of care, so there should be some kind of a connection between the victim and the defendant, I.E the case of Osman v Ferguson there was proximity because the police knew the next victim but failed to inform them about them being in danger whereas in the case of Hill v Chief Constable there was not proximity as the victim was not clear who to be. There are a number of relationships that give rise to an affirmative duty to prevent harm. These include employer and employee, parent and child, driver and passenger, referee and player in a football match.

Its fair, just and reasonable to impose liability even if the harm was foreseeable, the parties were close, the courts decided there wouldn't be a duty of care, because fair, just and reasonable will depend on the proximity of the relationship between that parties and other relevant factors e.g. public policy. However in Capital & countries Plc v Hampshire County Council, this case is an example, where the fire brigade attended a fire and a fire brigade ordered that the sprinkler system should be off, so this led to a more serious fire damage. This was fair, just and reasonable to recognize a duty of care if the damage is not reasonably foreseeable.

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Nick Price

18th of Mar 2012

A generally accurate answer which does include some examples and case examples. However there are a number of improvements that could be made to make the answer more accurate. Rating ***

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