Negligence: Duty of Care

Meaning of negligence: the term negligence was defined by Lord Alderson, B in Blyth vs Birmingham water works Ltd as 'the omission to do something which a reasonable man guided up on these considerations which ordinarily regulate the conduct of human affairs will do or doing something which a prudent and reasonable man would not do'.

Generally speaking, negligence is the omission of failure to do something which a reasonable man under similar circumstances would do or doing something which a reasonable and prudent man would not do. So for negligence occur, three things must occur.

1. Their must by existence of duty to take care.

2. the existence of that duty to take care must be breached.

3. there must be damage as a result of the breach of that duty to take care.

Because negligence is a wide topic, we will focus today on duty of care. The next topic would be on breach of the duty to take care

Existence of Duty of Care

A man may not be held liable or responsible for every careless act he does even if the act causes damage to another person. He will only be held liable if and only if a legal duty of care can be established.

You owe a person a duty of care if your action or omission can lead to damage to that other person. For example if your driving recklessly on the road would lead to injury to another road user, then you owe a duty of care to that road user. In order for you to carry out this your duty of care to the road user, you need to exercise extra care to make sure that your conduct on the road does not cause harm to the person. But if you owe no duty of care to anybody, then you are entitled to be as reckless as you want to be. Another typical example is seeing an injured man on the road. You owe him no duty of care, so you can choose to walk away without being held liable for whatever happens to the person. But if you choose to help the person, then you owe him a duty to make sure that to do not leave him worse than he was when you decided to help.

Let's use the image above as n example. It is obvious that the lady has gone to help the injured guy. She could have walked away because she owed no duty to him but since her conscience has made her decide to be of help, she now owes the injured man a duty to see that he will not sustain further injury resulting from her mismanagement else she would be liable to him

Any person claiming that another has been negligent to him must first of all establish that the defendant owes him a duty of care. The claimant must show that his injury or loss what is a results of the defendant breaching his duty of care to him. As noted by Lord Esher in Le Liovre vs Gould, 'the question of liability for negligence cannot arrive at all until it is established that the man who has been negligent old some duty to the person who seeks to make him liable for the negligence full-stop a man is entitled to be as negligence as he pleases towards the whole world if he owed no duty to them'.

Duty of care is measured using the standard of what a reasonable man ought to or ought not to do.

the manufacturer of goods or a duty of care to the ultimate consumer to ensure that when the goods is used in the normal way the product does not cause injury to the consumer. Like why is an employer owes a duty of care to provide adequate equipment and a safe system of working for the employees. An owner of a domestic animal with dangerous propensity ows a duty of care to people who are likely to be injured by the animals, so he has to exercise extra care to ensure that his or her animals does not cause harm to the public.

In the popular case of Donoghue vs Stevenson, a manufacturer of ginger beer so ginger beer in an opaque bottle to a retailer. the boy bought the bottle of the ginger beer from the retailer and treated his girlfriend to its contents. The girl alleged that she suffered gastritis as a result of seeing and drinking the contaminated contents of the beer manufactured by the defendants full stop the ginger beer contained decomposed remains of a snail. The House of Lords heard that the manufacturer hold a duty of care to ensure that the bottle did not contain noxious matters under the content of his production does not cause damage two people who are likely to consume it. It was in that case that the neighborhood principle was proposed by Lord Atkin.

According to him, 'the role that you are to love your neighbour becomes in law that you must not injure your neighbour...your neighbour is any person or persons who are so closely and directly affected by your acts that you also reasonably have them in contemplacion as being so affected when you are directing your mind to the actor or omission which are called in question'.

When determining duty of care, the court put into consideration what is and what is not public policy. It is against public policy for a client to Sue his lawyer for negligence in conducting his defence in court. So also is it wrong for a duty of care to be old or to exist between participants in a crime full stop in Ashton vs Turner, three thieves we are making a get away in a car owned by one of them and driven by another whose reckless driving cost injury to one of them. It was held that the plaintiff was hold no duty of care by his friend and so could not recover in negligence because the circumstances surrounding his injury was illegal and against public policy.

Sometimes, common sense determines the scope of our duty of care to others. For example, if A hits B with his vehicle causing B to be hospitalized. The hospital gets robbed and B's injury is worsened on his attempt to escape, A would only be held liable for knocking B down and nothing more. He will not be held liable for the further injury in the hospital.

One owes a duty of care to others if his inability to act well will result to damage to them. For a plaintiff to succeed in an action for negligence, he must first of all prove that the defendant owes him a duty of care.

To be continued

All images from Google

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