4 Duty of care
Every person owes a duty of care to another person.
Case law: Donoghue v Stevenson 1932
Four test was laid down by The Nicholas to determine whether a duty of care exist
- Was the damage foreseeable by the defendant at the time of omission?
- Is there neighborhood principle between the parties?
- Should the law impose duty of care between parties
- Is there a matter of public policy exists for the duty of care?
Example
For example A was given an ipad on his birthday by his uncle. Due to some technical defect ipad set fire to his bedroom and cause damaged to his furniture .A made ill by inhalation .A can claim for the damages from ipad manufacturer for;
- Pain and suffer caused by smoke inhalation
- Loss of income during the period of illness.
- Cost of replacing furniture and redecoration.
But he cannot claim for the ipad which is pure financial loss.
4.1 Breach of duty of care
The claimant has not only to prove that duty of care exist but also has to prove that duty of care breached by the defendant.
4.2 Was there a breach?
Each case must view separately on its fact for establishing whether there has been breached. Facts of case speak for themselves in many instances; this is the principle of res ipsaloquitor
Claimant has to prove that duty of care was breached by the defendant and defendant has to prove that he was not negligent in his actions.
4.3 The standard of care
Claimant has to show that defendant failed to take the degree of care which a reasonable man would have taken in this situation
If a person acts in a particular profession, he must show care of that profession
The following principles have been established by case law
4.3.1 Particular Skill
Generally all reasonable persons have to possess same kind of skills but if someone acts to have particular skills, then standard of care expected from that particular skill. Like standard of care from accountant is expected from his particular skills
4.3.2 Lack of skill
The same standard of care excepted from experienced and inexperienced person from particular skills.
4.3.3 Lack of hindsight
This test based on the defendant knowledge at the time of act , therefore any
Following factors should be considered when determining the breach of duty of care.
- Probability of injury
- Seriousness of the risk
- Issues of practicality and cost
- Common practice
- Social benefits