Law of Negligence: Duty of Care - Essay Example

?CONFORMANCE MENT Please the following, and enter the required information in the grey shaded spaces provided prior to of the essay. 1. Your LAW1100 on campus essay should have not less than 2800 effective words but not more than 3200 effective words (without the express permission of the Unit Coordinator) (see LAW1100 Unit Plan (February, 2011, page 9). This essay has 2836 words (in determining the number of words, do a ‘word count’ from the beginning of your Introduction to the end of your Conclusion, and subtract all headings, sub headings, direct quotations and in text references therein from the result). 2. Your LAW1100 essay should use at least 6 to 10 quality academic reference sources (i.e. in terms of LAW1100 requirements, texts and journal articles – see LAW1100 on campus Essay Preparation Kit (2011), page 19). This essay has 6 quality academic reference sources (in determining the number of quality academic reference sources for LAW1100 purposes, add up the total number of end references and subtract those which are not texts or journal articles; do not include the number of cases in this count – see point 4 below). 3. Your LAW1100 essay should cite your end reference sources (collectively) on at least 30 occasions in the body of your essay (see LAW1100 on campus Essay Preparation Kit, page 20). This essay has 30 in-text reference entries. (in determining the number of in-text references used, count the number of times your end reference sources have been cited in-text in total – note that a few of your reference sources will likely be cited in-text more often than others; do not include the number of cases in this count – see point 4 below). 4. Your LAW1100 essay should use at least 8 to 10 case authorities (see LAW1100 on campus Essay Preparation Kit, page 17). This essay 12 cases (in determining the number of cases, add up the number of cases in your Table of Cases, which should reflect the cases cited in the body of the essay). I acknowledge that the information relating to my LAW1100 essay in the above conformance statement is true and correct to the best of my knowledge. Name: __________________________________ Student Number: ______________ LAW1100 LEGAL FRAMEWORK ON CAMPUS 01 2011 MAJOR ESSAY ASSIGNMENT (DUE MONDAY WEEK 8) Law of Negligence: Duty of Care An essay by __________________________ (your name) TABLE OF CONTENTS Page 1.0 Introduction ………………………………………………………………. 3 2.0 Background….……………………………………………………………. 3 3.0 Duty of Care for Negligent Acts ……………………………………….… 4 3.1 Historical Approach ……………………………………………………. 5 3.2 Contemporary Approach ……………………………………………….. 6 3.2.1 Reasonable foreseeability ………………………………………… 7 3.2.2 Analogies – recognized duties of care ……………………………. 7 3.2.3 Neighbourhood factors …………………………………………… 8 4.0 Duty of Care for Negligent Advice ………………………………….…… 8 4.1 Development of the law …………………………………..………..…... 9 4.2 Shaddock test, reliance and assumption of responsibility…….……..…… 9 5.0 Analysis……………….……………………………………………………. 9 5.1 Duty to prove duty of care……………………………………................ 9 5.2 Breach of contract…..…………………………………………………… 10 6.0 Conclusion ………………………………………………………………… 11 7.0 End References and Table of Cases ………………………………………. 12 Law of Negligence: Duty of Care 1.0 Introduction The duty of care is a duty which is often assumed to be incumbent upon each and every person for as long as he deals and he relates with other people. This duty can sometimes be neglected and ignored by individuals as they go about their daily lives. As a result, harm results to other individuals and liability ensues from negligent acts. The doctrine of negligence seems to stem from the decision in the case of Donoghue v. Stevenson (1932), where authors Pentony and colleagues observed that “the old idea that a duty of care could exist in contractual and other specifically defined relationships…was finally discarded”. The authors considered the fact that the adjudicators noted how the duty of care could be apparent in any given situation for as long as damages or loss on the part of one individual was relatively foreseen and the link between the parties was close enough to necessitate one to avoid causing people harm (Pentony, et.al., 2009, p. 740). After the Donoghue decision was set forth, attempts to establish a standard and “best” way to secure the duty of care was abandoned by the courts. The search for a best way is now considered a relatively impossible task to perform. It seems to be reasonable then to set forth that deciding whether or not the duty of care exists is not a simple decision. This paper will now seek to discuss the duty of care as an essential of negligence that a plaintiff in a negligence case needs to establish. This discussion shall utilize legal authorities and decided cases in order to establish a thorough and comprehensive answer. 2.0 Background A discussion from the Legal Services Commission of South Australia (2011) sets forth important details about the duty of care. It is a legal duty to prevent causing harm to another person; it is a duty seen in instances when harm is reasonably expected and when no care is taken. In terms of relationship, the proximity between the two people involved must be close enough to expect such a duty to exist. These relationships may be that of a doctor and his patient, a teacher and his student, a driver and his passenger, and similar relationships. In the Civil Liability Act of 1936, the duty of care is qualified for good Samaritans acting in an emergency situation. There is no incumbent duty of care which exists in their relationship, hence, they are exempt from civil liability for as long as they were not reckless in their actions (Legal Services Commission of South Australia, 2011). A determination of breach in this duty is a case to be determined by the courts with the latter looking first at the standard of care which is incumbent upon the parties involved. Beyond this, the determination of breach is largely dependent on the person claiming breach. 3.0 Duty of Care for Negligent Acts Negligent acts are acts where injury is not actually deliberate, but is reasonably foreseeable (Mettam, 2006). In this instance, the duty of care must be anticipated based on the relationship which exists between the parties. In effect, a doctor may not deliberately harm his patient through his action or inactions, but he may be held liable for failing to foresee that harm which could have been inflicted on his patient for his actions. In effect, careless actions would not always amount to negligence (University of Ballarat, n.d). Moreover, in negligence an individual can only be held liable for inflicting harm which is the “foreseeable consequence of their actions, that is, failure to exercise reasonable care and skill” (University of Ballarat, n.d). A driver for example may not owe a duty of care to his passenger, however, he is expected to exercise care and skill in his driving and failing to do that would make him liable for negligence (Vines, 2000). Negligence, in this case is about failing to do something which a reasonable person would have done; it can otherwise be defined as doing something which a prudent person would not actually do; it is also largely dependent on individual context (Sokol, 2006). 3.1 Historical Approach Prior to 1932, the duty of care was a general obligation. Tort existed and was being imposed in instances where the courts deemed the duty to have been owed – example, in road accidents and the transport and handling of dangerous goods. The case of Donoghue v. Stevenson (1932) set forth the principle which basically covered all instances where the courts already deemed a claim for liability based on negligence. This case also emphasized that the rule of loving one’s neighbour is translated as not injuring one’s neighbour in the legal context. One’s neighbour is that person who may be close enough in relationship to be affected by our actions (Kalderimis, 1999). The issue of relationship here is not based on implied and express contracts of care. The test laid down by this case law has been widely criticized for being too encompassing or too wide in application; however it has also made it easier for those in the legal sphere to set forth the argument that liability for negligent acts causing harm can be applied in new scenarios which were not covered under previous laws and jurisprudence (Tufal, 2011). Lord Reid in the Home Office v. Dorset (1970) ruling set forth that the Donoghue ruling should apply unless there is a “justification or valid explanation for its exclusion”. This ruling was also supported in the Anns v. Merton LBC (1977) ruling where the court, in summary, stated that for a duty of care to be manifest in any situation, it is not essential to include the facts of a situation within the purview of previous scenarios where a duty of care has been seen to exist. The question can instead be settled in two phases – the existence of a relationship between the parties which merits care where lack of care may cause harm to one of the parties; and if such relationship exists, there is a need to evaluate the presence of considerations which may be negative or which may reduce the extent of the duty or the person to whom such duty is owed (Anns v. Merton LBC, 1977). As the Courts of Appeal started applying the test laid out in the Anns v. Merton case, the House of Lords took a more distant approach to this test. In effect, Lord Keith in the Rowling v. Takaro Properties (1988) case pointed out that the court feared a literal application of the principle laid out in the Anns case and such literal interpretation may create a “failure to have regard to, and to analyse and weigh, all the relevant considerations when deciding whether to impose a duty of care” (Rowling v. Takaro Properties, 1988). In the CBS Songs v. Amstrad (1988) case, the court admitted that the Anns ruling opened the doors for plaintiffs alleging damages for breach of duty. The court ruled that the Anns case seemed to assume relationships between persons – even those without any reasonable links between them; it also set forth that what is foreseen is based on hindsight and every act leading to some negative consequence must be legally accounted for (CBS Songs v. Amstrad, 1988). Such cases set forth the development of the duty of care and of negligence on a more historical note. Modifications to these rulings have become apparent in recent years. 3.2 Contemporary Approach In the current setting, the requisites which must be fulfilled before the duty of care is deemed to exist have been set forth by Lord Bridge in the Caparo Industries v. Dickman (1990), where in summary, the court ruled that aside from the foreseeability of damage, the essential elements in a scenario which would give rise to the duty of care is that there must be a relationship of proximity or neighbourhood between the party imposed with the duty and the other party to whom such duty is owed. Moreover, the scenario or situation must be one where the court of laws deems it fair that the laws impose a duty on one party for the benefit of the other (Caparo Industries v. Dickman, 1990). In other words, there should therefore be: a foreseeability of the damage; an adequately proximate relationship between the parties involved; and imposing the duty is deemed fair and reasonable (Tufal, 2011). 3.2.1 Reasonable foreseeability Foreseeability is laid out in terms of whether or not a reasonable person would have foreseen or anticipated damage in the circumstances (Butler, 2006). Another requirement in judging duty of care to exist is that the risk of harm, was at the time the duty of care was violated, “reasonably foreseeable by a reasonable person in the defendant’s position as a risk of injury to the plaintiff or to a class of persons of which the plaintiff was a member” (Heinrichs and Fell, 2005). The test of reasonable foreseeability is not involved or concerned at the time the duty is expected, with the means by which the injury occurred or with the kind of injury which was later suffered by the plaintiff (Heinrichs and Fell, 2005). The requirement of reasonable foreseeability is critical in the finding of liability in instances of negligence. Michael Jones emphasizes that it is the basis of the neighbour principle, and it also tests the breach of duty and the remoteness of damage (as cited by Mitchell, 2008). In the case of Jolley v. Sutton London Borough Council (2000), this principle was also a major consideration. In this case, the court ruled that the council had a duty of care based on reasonable foreseeability. The council failed to remove the boat which could cause harm to children and other visitors to the area. The boat, subject of this case, was considered a hazard which could easily attract children; the council should have anticipated this occurrence and should have prevented this risk from leading to actual harm (as cited by Mitchell, 2008). 3.2.2 Analogies – recognized duties of care The recognized duties of care are based on acts of omission or of commission. In instances where a person fails to carry out the appropriate precautionary measures and in instances when he fails to take appropriate action, the act of omission may be present. In an undertaking, a person agrees to carry out a task, even if it is for free, and to act carefully in carrying out such act (Barrett v. Ministry of Defence, 1995). The following are the instances where the duties of care are said to exist: negligence misstatements (to the people they advise); road users (in relation to other road users); school authorities (in relation to their students); occupants of premises (to individuals entering said premises); bailee of goods (to their bailor); supplier of goods and services (to the people they are supplying); local councils (for various reasons, e.g. to constituents wanting zoning information; solicitors holding wills (to executors named in the wills); and dog owners (to people who might be bitten) (University of Ballarat, n.d). 3.2.3 Neighbourhood factors The neighbourhood factor was previously mentioned, nevertheless, to reiterate, the discussion set forth by Lord Atkin in the Donoghue v. Stevenson (1932) case, one has a duty to love one’s neighbour. The question of ‘who one’s neighbour is’ is restricted. One’s neighbour in the legal sense are those who are closely affected by a person’s act that one “ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts of omissions which are called in question” (Donoghue v. Stevenson, 1932). 4.0 Duty of Care for Negligent Advice In the case of Hedley, Byrne, and Co., Ltd. v. Heller and Partners, Ltd., (1964), the court, in summary, through Lord Morris explained that if someone who possesses a special skill, irrespective of contract, advices a person who relies on such skill, a duty of care is required. In effect, in instances when a person who has special skills on a certain field issues advice to another person – regardless of the presence or absence of a contract – and the latter relies on such advice, a duty of care is required of the person giving advice. In instances when such care is not observed, liability may be imposed on such person. 4.1 Development of the law The concept of duty of care first emerged in the United Kingdom where in 1932, the courts considered a case involving snails which found its way into a glass of ginger beer (Godhard, 2006). In this case the woman sued the publican who served her the beer for the nervous shock she suffered after being served the beer. The court upheld that the publican owed his customers a duty of care (Godhard, 2006). Since then, other actions have been submitted for evaluation involving similar actions. Cautious individuals wanting to avoid these suits have since posted signs to warn individuals of danger (Godhard, 2006). The duty of care has since been set forth in different countries, including Australia, the United States, and other parts of the world. 4.2 Shaddock test, reliance and assumption of responsibility The issue of negligent misrepresentation was set forth in the case of Shaddock & Associates Pty Ltd v Parramatta City Council. In this case the high court established that the Paramatta City Council was liable to the plaintiff for not advising the developer about the presence, at the time of purchase by the plaintiff, of road widening plans on the property. The court decided that it seems in line with general principles, that an individual must not be under a duty to take reasonable care that an advice he issues to another person is correct, unless there is a knowledge which relies upon him to use reasonable care and to act with reliance on advice or information (Shaddock & Associates Pty Ltd v Parramatta City Council, 1981). 5.0 Analysis 5.1. Duty to prove the duty of care The duty of care, as was discussed above, is the primary element of negligence and is concerned with the relationships between different individuals (Newnham, 2000). The Donoghue case is the landmark case in this duty with Lord Atkin making a bold statement on this duty – changing its general application to negligence cases. The duty of care in effect, arises from a relationship between the two parties involved in the case. Their relationship must be proximate and neighbourly enough to merit ‘closeness.’ (Newnham, 2000). For example, there is a relationship between a teacher and his student and failure on the part of the teacher to ensure that the child is safe within the school premises and within his care, and he must take reasonable care in order to prevent harm from befalling such child (Newnham, 2000). Failing such duty and such safety precautions, the teacher, as well as school administrators may be held liable for negligence. Once this duty of care is established, and the relationship where it is based is set forth, the liability of the parties involved may be established. 5.2. Breach of duty When the duty of care is established by the court, the latter then seeks to establish whether a breach of duty has occurred (Fox, 2002). In effect, the court evaluates whether the standard of care required has been met by the defendant or if they fall well below the expected standards. The standards of care have been evaluated by the courts and in general, professionals are required to apply skill, care, and diligence as expected in their profession (Voli v. Inglewood Shire Council & Anor, 1963). As soon as a duty of care is established, the standard of care expected is that of a reasonable man. In the case of Brickhill v. Cooke (1984), the New South Wales Court of Appeals established that in order for an engineer to discharge his duties, he must do so with the care expected of a reasonably competent qualified engineer (Fox, 2002). Care must be applied to evaluate whether or not a client has sought to improve the standard of care by calling for the highest standard of care in the conditions of the contract (Fox, 2002). The standard of care for services given by professionals is based on the standard skills seen among peers in general, not based on the skills of professionals with rudimentary skills or those with exceptional skills (Fox, 2002). In essence, a professional does not commit breach of duty is it arises from professional services if there is reasonable establishment of the fact that the professional performed his duties based on widely accepted standards of his profession (at that time) (Fox, 2002). Other standards may also be the bases for a contract. In instances where there are no standards indicated in a contract, the basis must be determined from the actions of a reasonable professional with relevant skills and qualifications. In general the better course of action would be to apply the latest applicable standards in the practice (Fox, 2002). In instances when a professional is a specialist within that field of discipline, the standard of care expected is that of a skilled professional within the said field of specialization. In the case of the Supreme Court of Queensland case Orlit Pty Ltd v. JF&P Consulting Engineering Pty Ltd, (1995), the court decided that the standard of care was not based on the consulting engineer, but on the consulting engineer specialising in urban development and structural civil engineering. In effect, if professionals represent particular skills and experience, the standards of care will be higher than the usual standard required of their profession in general (Fox, 2002). Whether a professional is considered a specialist or not, it would be advisable for such professional to be knowledgeable in the advancements in his field of practice (Fox, 2002). The standards of care would now be based on what the professional knew and what he should have known at the time the alleged negligent act was committed. 6.0 Conclusion The discussion above sets forth that in cases of negligence the duty of care is an essential matter to prove in the establishment of a plaintiff’s negligence. This duty of care is based on the relationship between the plaintiff and the defendant and such relationship is one of proximity and of neighbourhood. The relationship may be that of a driver and his passenger, a driver and other road drivers, a teacher and his student, a doctor and his patient, an engineer and his client, and similar relationships, In general, the professional acts of a person attested based on services rendered are based on the standards of his practice. Absent such standards, the latest and reasonable qualifications will be used in order to determine negligence on the part of the defendant. The liability established in the duty of care is also based on the damages incurred by the plaintiff, as well as the degree of negligence and lack of care seen in the defendant’s actions (or lack thereof). It is therefore important for the plaintiff claiming liability on the part of the defendant to establish the presence of a proximate relationship between the parties and the failure of the defendant to act with care in the performance of his duties. 7.0 End References and Table of Cases Butler, Desmond A. (2006) Liability for Bullying at Schools in Australia: Lessons Still to be Learnt. Education Law Journal, 7(4). pp. 243-254. Fox, P. (2002). Negligence and Duty of Care. Consult Australia. Retrieved 14 April 2011 from http://www.consultaustralia.com.au/downloads/Practice%20Notes/Section%202/2.02.pdf Godhard, T. (2006). What do we mean by “Duty of Care”? Childcare and Children’s Health, volume 9(1). Heinrichs, P. & Fell, R. (1995). Acceptable risks for major infrastructure: proceedings of the Seminar on Acceptable Risks for Extreme Events in the Planning and Design of Major Infrastructure, Sydney, N.S.W., Australia, 26-27 April 1994. New South Wales: Taylor & Francis, 1995 Daniel Kalderimis, (1999). Contractual Economic Loss in New Zealand—Who, Then, Is My Neighbour Really? 29 VICTORIA U. WELLINGTON L. REV. 193, 209. Legal Services Commission of South Australia (2011). Negligence. Retrieved 14 April 2011 from http://www.lawhandbook.sa.gov.au/ch01s02.php Mettam, B. (2006). Duty of Care, Negligence Risk Assessment and Risk Management In SONS. SONS. Retrieved 14 April 2011 from www.sons.ecu.edu.au/osh/.../Duty_of_Care_Risk_Management.doc Mitchell, A. (2008). AS Law. New South Wales: Taylor & Francis, 2008 University of Ballarat (n.d). The modern tort of negligence. Retrieved 14 April 2011 from http://www.uob-community.ballarat.edu.au/~rshaw/.../Duty%20of%20care.ppt Newnham, H. (2000). When is a teacher or school liable in negligence. Australian Journal of Teacher Education. Retrieved 14 April 2011 from http://ajte.education.ecu.edu.au/ISSUES/PDF/251/Newnham.pdf Pentony, B. Graw, S., et al. Understanding Business Law ,Butterworths, Sydney, 2009. Sadler, P. (2000). Real Estate Agents’ Liability for Negligent Misstatement. Curtin University of Technology. Retrieved 14 April 2011 from http://www.austlii.edu.au/au/journals/LegIssBus/2000/1.pdf Sokol, D. (2006). Virulent Epidemics and Scope of Healthcare Workers' Duty of Care. Emerging Infectious Diseases, volume 12(8) Tufal, A. (2011). Existence of a Duty. A-Level-Law. Retrieved 14 April 2011 from http://a-level-law.com/tort/Negligence/duty_lecture.htm Vines, Prue (2000). The Needle in the Haystack: Principle in the Duty of Care in Negligence. UNSWLawJl 25; 23(2) University of New South Wales Law Journal 35 Cases Anns v. Merton LBC (1977) Barrett v. Ministry of Defence, 1995 Brickhill v. Cooke (1984) Caparo Industries v. Dickman (1990) CBS Songs v. Amstrad (1988) Donoghue v Stevenson (1932) Hedley Byrne & Co Ltd v Heller and Partners Ltd (1964) Jolley v. Sutton London Borough Council (2000 L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) Office v. Dorset (1970) Orlit Pty Ltd v. JF&P Consulting Engineering Pty Ltd, (1995) Rowling v. Takaro Properties (1988) Voli v. Inglewood Shire Council & Anor, (1963) Read More