Monday, April 1, 2013

The duty of care.

Negligence is the most important tort in modern law. It concerns breach of a legal duty to take care, with the result that damage is caused to the claimant. Just a few examples of the type of case which might be brought in negligence are people injured in a car accident who sue the driver,businesses which lose money because an accountant fails to advise them properly, or patients who sue doctors when medical treatment goes wrong.Torts other than negligence are normally identified by the particular interest of the claimant that they protect. For example, nuisance protects against interference with the claimant’s use
and enjoyment of land, while defamation protects against damage to reputation. By contrast,negligence protects against three different types of harm :
personal injury;
damage to property;
economic loss.
In practice, the rules of the tort may differ according to which type of harm has been suffered, but
all of them are protected by negligence.
The tort of negligence has three main elements:
the defendant must owe the claimant a duty of care;
the defendant must breach that duty of care;
that failure must cause damage to the claimant.

Negligence is essentially concerned with compensating people who have suffered damage as a result of the carelessness of others, but the law does not provide a remedy for everyone who suffers in this way. One of the main ways in which access to compensation is restricted is through the doctrine of the duty of care. Essentially, this is a legal concept which dictates the circumstances in which one party will be liable to another in negligence: if the law says you do not have a duty of care towards the person (or organisation) you have caused damage to, you will not be liable to that party in negligence, no matter how serious the damage.
It is interesting to note that in the vast majority of ordinary tort cases which pass through the court system, it will usually be clear that the defendant does owe the claimant a duty of care, and what the courts will be looking at is whether the claimant can prove that the defendant breached that duty – for example, in most of the road accident cases that courts hear every year, it is already established that road users owe a duty to other road users, and the issues for the court will generally revolve around what the defendant actually did and what damage was caused. Yet flick through the pages of this or any other law book, and you soon see that duty of care occupies an amount of space which seems disproportionate to its importance in real-life tort cases. This is because when it comes to the kinds of cases which reach the higher courts and therefore the pages of law books, duty of care arises frequently, and that in turn is because of its power to affect the whole shape of negligence law. Every time a potential new duty of care is accepted (or ruled out), that has implications for the numbers of tort cases being brought in the future, the types of situations it can play a part in, and therefore the role which the tort system plays in society.

As a result, the law in this field has caused the courts considerable problems as they have often found themselves torn between doing justice in an individual case, and preventing a vast increase in the number of future cases. We can analyse the development of the law on duties of care in three main stages: the original neighbor principle as established in Donoghue v Stevenson(1932); a two-stage test set down in Anns v Merton London Borough (1978), which greatly widened the potential for liability in negligence; and a retreat from this widening following the case of Murphy v Brent-wood District Council (1990). Although much of the following section describes historical development, it is worth taking time to get to know the background, as this will help you make sense of the reasoning in many later cases.

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