Duty of Care
Duty of care applies to many different areas from care giving through to legal services. The term is used to describe the relationships and circumstances in which the law recognises that there is a duty of care owed by one party to another.
Failure to demonstrate duty of care can result in serious consequences for the defendant who may be expected to pay damages to the individual who has suffered loss or damage due to their breach of the duty of care obligation.
In claims, it is therefore necessary for a claimant to be able to prove that the defendant owed them a duty of care. In different areas of law, duty of care will mean different things depending on the type of loss that has been sustained and the legal tests that need to be carried out.
In the majority of tort scenarios duty of care is classed as being a duty to act as a reasonable person. However, in everyday life, reasonable person does not exist because in tort law, a ‘reasonable person’ is created to define whether the actions of a real person would be the same in a similar situation.
The person who is created for the purpose of tort law will always act with precision and care and they will always be mindful that their actions can result in damage or loss to another if they do not exercise due care and attention.
Where the reasonable person scenario is applicable in tort law, the actions of the defendant will be compared with that of a ‘reasonable person’ in the same situation. If the course of action that the vendor took didn’t live up to the actions of a real person the defendant may be found negligent and liable for any damage, loss or injury that resulted from their negligence.
One small segment of tort law is that of negligence. For negligence to be actionable there are several elements that must be established. The first is that the duty of care needed to exist and the claimant was owed a duty of care. Breach of duty must have occurred either through the way in which the defendant acted or something that they omitted.
Consequently damage was caused to the claimant which was a direct result of the negligence.
Secondly, there must have been a duty of care owed to the claimant. The remit surrounding duty of care does not necessarily mean that the individual does not just have to act carelessly in order to cause a breach. In order for the breach and resulting damage to be actionable it has to be demonstrated that the duty extends to the reckless infliction of damage that the complainant raises.
There are various aspects to duty and the first element that the court will take into consideration will be whether notional duty should exist. This notional term is considered in very broad terms and applies to both the relationship between the defendant and claimant and the resulting damage as a result of the duty of care being breached.
Claimants must fall into the required category of damage that has arisen.
There are several situations which give rise to duty of care and before making a claim it is important to understand the situations that give rise to a duty of care in order to ascertain whether there has been a breach.
Duty of care will arise in the following situations;
- Road users and pedestrians
- Manufacturers of products owe a duty of care to the people who purchase them (consumers)
- Professionals owe a duty of care to their clients
- Builders owe a duty of care to occupiers and owners of buildings
- Employers owe a duty of care to their employees
In some of the above situations, specific legislation has been produced to safeguard the rights of certain groups of people. As an example, manufacturers are now covered under the Consumer Protection Regulations, but some protection still exists under negligence laws.
In addition, duty of care can be established during a contractual relationship. In a professional context claims for duty of care will be made in either negligent terms or contractual.
These are just a few examples of the relationships that exist and when a duty of care is owed.
Questions are sometimes raised when identifying whether a notional duty of care applies in a particular situation rather than being governed by a specific scenario. In these instances, the court will have to determine three factors. Firstly the court must be able to determine whether the damage was foreseeable. Secondly, they must ascertain whether a relationship of proximity exists between the involved parties and lastly, if both of the previous questions are affirmed the court will consider whether an imposition of duty would be reasonable, fair and just.
Throughout the decision making process, a court will need to carefully consider arguments on both sides. Decisions should be reached through balancing the elements on both sides.
In some situations, an argument in support of the duty owed will be outweighed by any counter argument which relate to the class of relationship that exists between the defendant and claimant.
Where a particular case is found to fall within the limits of notional duty, it is important to explore a case in more detail and determine whether the duty would cause the damage to be actionable. Looking at a case from this perspective is known as factual duty. By the same token, any act or omission may in some situations be formed on the basis of liability.
If it is established that the claimant does fall within notional duty, the care aspect is satisfied. If the remaining factors surrounding negligence are defined then the claim for breach will prove successful.
Pure Economic Loss
Where negligence resulting from lack of care causes only an economic loss it is classed as being ‘pure economic loss’. When looking at whether duty of care was owed to safeguard against economic loss this is a grey area. This is because the bounds of liability are usually unforeseeable and therefore difficult to establish. Consequently there are many limits placed in the recovery of pure economic loss with some categories being completely unrecoverable.
Duty of care arises in many different situations and it would be prudent to seek legal advice if you suspect that there has been any breach of duty of care so it can be investigated and advice provided accordingly.
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