DUTY OF CARE Duty of care is a requirement that a person act toward others and the public with watchfulness, attention, caution and prudence that a reasonable person in the circumstances would. In other words, a person is made liable for negligence only if he fails to perform his legal duty. As per Winfield and Jolowicz, the term ‘duty’ is not limited to the tort of negligence but can also be found in other tort as there is no legal duty to perform assault, battery, nuisance, defamation, etc. But in case of negligence, the duty of care is one of the most important condition on breach of which, the liability for negligence arises. Parcq L.J. in 1946 said the following regarding ‘duty’: “it is not true to say that whenever a person finds himself …show more content…
728 that the duty of care has to be approached in two stage test. Lord Wilberforce expounded two-tier approach. 1. Whether there is sufficient proximity between the parties to establish prima facie duty. 2. If it is so, whether the judge has any policy considerations to prevent from imposition of such duty. In this case, the local authority failed to notice that the building work which resulted in shallow foundations. The test laid down by Lord Wilberforce in Anns v Merton London Borough paved way for new areas of law such as pure economic loss and nervous shock. The Anns test had been criticized to broaden the scope of duty of care. The test was subsequently overruled in Murphy v Brentwood District Council [1991] 1 AC 398. In Murphy v Brentwood District Council, the local authority failed to inspect that the foundations of the building were unstable and the claimant was not able to raise money for repairs. The claimant had to sell the house and therefore, sought to recover the money from the council. The damages were declined on the grounds of economic loss. The leading case which is applicable with regard to duty of care is the decision of House of Lords in Caparo Industries Plc v Dickman. The facts of the case
In the Kamloops v. Nielson case, a house being built did not pass the inspection by the city and construction was stopped, however the builder ignored the requests and continued to build the home without passing the necessary requirements for safety. The inspector also chose not to follow-up on the builder and allowed him to build the house without proper approval. The house was then sold to a couple that was unaware of the history of the home, and once problems arose with the foundation, they sued the municipality and the vendor. Similar to the Anns v. Merton case, this case questioned whether duty of care could be expanded to municipalities, and the presiding judge used the Anns test in determining duty of care.
The appeal was heard in The NSW Supreme Court, Court of Appeal. The appellant appealed the issue of “blameless accidents” therefore providing new evidence, with the view that the preceding judge made an error recognising the content and scope of duty of care. He also noted the breach of duty of care and causation .
In this case, Thurston Binns was able claim for damages, which can be referred to one of the decided case Doyle v Olby (Ironmongers) Ltd (1969) 2 QB 158.
The Hedley Byrne rule was in course of time developed through many cases. The two-stage test, which arose from Ann V Merton London Borough Council [1978] evolved into three stage test after the Caparo Inductries plc V Dickman [1990], and now include following
Duty of care is an obligation imposed on me to provide a standard of reasonable care to another while performing an act that could foreseeably harm others. Duty of care must be provided with watchfulness, caution, prudence, attention and in the best interest of the service user. Failure to provide the care required will be termed an act of negligence which is liable by law. This affects my role because I have the duty of care to the service user I provide with care to keep them safe and protect them from abuse from others such as staff, friends and families. This is done by adhering to the safeguarding policies and procedures in my workplace, and receiving adequate training
part of the Doctrine Hedley Byrne and Co. Ltd V Heller and. Partners Ltd (1964), Rondel V Worsley (1969).
1. Duty to treat: healthcare professionals must follow the policy to give treatment to the patient no matter the patient is in time of crisis or could not afford to pay.
A care worker has many responsibilities. For example, it is a care worker’s responsibility to treat each individual fairly and equally with care. This is because a care worker would have to help people who have difficulties doing everyday tasks like getting up out of bed, getting to different places around the home, getting dressed, using the facilities and on some occasions eating. Some clients in the home could have physical disabilities, learning disabilities or mental illnesses such as dementia and Alzheimer’s. A role that a care worker could have is spending quality time with the residents, talking to them and doing activities as a group. This will make the residents feel valued and cared for. Another role that a care worker could have would be to tend to a
Machine Tools Co Ltd v Ex-Cell-o Corporation (England) Ltd (1979) 1 All ER 965 [3] Gibson v Manchester City Council (1979) [4] Partridge v Crittenden (1968) 2 All ER 421 [5] Grainger & Son v Gough (1896) AC 325 per Lord Herschell at 334 [6] Carlii v The Carbolic Smokeball Co. Ltd (1893) [7] Adams v Lindsell [8] Household Fire Insurance Co v Grant (1879) 4 Ex D 216 [9] Holwell Securities Ltd v Hughes (1974) 1 All ER 161 [10]Gibson v Manchester City Council (1979) [11] Hyde v Wrench (1840) 49 ER 132 [12] Stevenson v McLean(1880) 5 QBD 346 [13] G Percy Trentham Ltd v Archital Luxfer Ltd (1993) 1
The fate of environmental litigation in Budden v BP Oil and Shell Oil (1980) 124 SJ 376 amply demonstrates the inherent difficulties of actions in nuisance and negligence for damage suffered as a result of environmental harm. The plaintiff claimed damages, alleging nuisance and negligence, for harm alleged to have been suffered as a result of lead pollution caused by emissions from petrol during the refining process. The defendants applied to have the action struck out as disclosing no reasonable cause of action. It was clear from the evidence that the plaintiff had suffered no more harm than any other small child living near a main road might suffer and thus no claim in nuisance could lie. The court of appeal rule accepted the argument put forward by the defendants that they had complied with the relevant statutory provision under the Control of Pollution Act 1974 thus the statutory standard establishes the common law standard. Thus the action in negligence also failed because the defendant companies had at all times complied with the regulations laid down by the secretary of state under the Control of Pollution Act 1974. This case shows how legislation can have an adverse effect on pollution control because if legislation sets a certain standard that turns out to be too great and leads to environmental damage then the
middle of paper ... ... The Supreme Court has remitted this matter back to the High Court for "further consideration" of the issue of contributory negligence. Mr Justice Brian McGovern found the breach of duty by the firm amounted to "a deception" because it was aware the required security was not in place but led the bank to believe it was.
Ltd (1964) the ratio of the case was 'a person owes a duty of care
The burden of disproof is quite onerous, cf in example Howard Marine & Dredging Co Ltd v A. Ogden & Sons Ltd (1978)
According to the Work Health and Safety Legislation 2012 (Work Cover Authority 2012), a manager have to comply with the notion of duty of care. These duties can be defined around five major points, as follows: