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The duty of care
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| Words: 2150 | Submitted: 31-Oct-2009
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DescriptionThis question concerns the adequacy and effectiveness of the tests that determine whether or not a defendant has breached his or her duty of care. In analysing the question and providing an answer a brief background will be provided, followed by the specific rules that are applied by the courts. The rationale behind these rules will then be considered before discussing the merits of the rules.
THE CONTEXT OF DUTY OF CARE
The â€˜modern eraâ€™ of the tort of negligence is generally traced to the case of Donaghue v Stevenson  AC 562. In this case Lord Atkin set out the 5 hurdles that any claimant must clear in order to establish liability in a claim for negligence. They are the existence of a duty of care in fact and in law, the breach of that duty, existence of damage, and causation. It is the third of these that is relevant for this discussion. Where it has been established that the defendant owes a duty of care, how does the court determine whether or not that duty has not been complied with?
Once it has been established that a duty of care exists the starting point in determining the conduct of the defendant arises out of Blyth v Birmingham Waterworks Co (1856) 11 Ex 781. The ruling was that;
â€œNegligence is the omission to do something which a reasonable manâ€¦would do, or doing something which a prudent and reasonable man would not doâ€ (Blyth at 784)
The clear difficulty with such a test is that it is inevitably based upon questions of fact. In spite of this handicap the courts have had qualified success in setting out clear guidelines that allow a court to have a frame for its analysis. The balancing concern is that it is built around a patchwork of case-law; from each case a specific principle can be extracted.
In Paris v Stepney Borough Council  AC 367 the court considered the potential implications of the risk. The claimant was blind in one eye and employed as a welder. He was not provided with protective equipment for his eye(s). Even though it was established that the provision of such equipment was not standard procedure the court ruled that the defendant should have considered the extreme consequences and that it was a relevant factor.
The second factor that is considered by the courts is the likelihood of the consequences occurring. In Bolton v Stone  AC 850 the court considered whether it would be reasonable to expect a cricket ground to erect a net to prevent cricket balls from leaving the ground. The court examined the probabilities of the consequences occurring and stated that the likelihood of occurrence was a relevant factor.
The case of Latimer v AEC Ltd.  AC 643 provides the third factor that is considered. The defendant is only obliged to take measures that are reasonable and it is possible that the only possible way of preventing a particular harm would require a disproportionate funding. In Latimer a product of flooding and other materials rendered the floor of the factory exceedingly slippery. The defendantâ€™s placed sawdust but did not close the factory, a step that the claimant maintained they should have taken. The House of Lords ruled that the degree of risk had to be weighed against the extent of remedial work that was necessary. In this case it would not have been reasonable to require them to shut down the entire factory.
The most tenuous of the factors was considered in Watt v Hertfordshire County Council  1 WLR 835 where an accident occurred during an emergency services operation to douse a fire. The Court of Appeal ruled that the risk that had been taken must be weighed against the social utility of the activity. In this case the nature of the enterprise was sufficient to shield the Council from an allegation that they had breached their duties to the employee in negligence.
This balancing test is the first of two critical issues that involve the â€˜breachâ€™ question. The second is the perspective from which the actions must be drawn. This is a crucial point because between that which the claimant states could be done and what the defendant believed could be done there is likely to be a not insignificant chasm.
The crucial authority is Roe v Minister of Health  2 QB 66. In this case Denning LJ wrote that the crucial date of knowledge was the date of the incident. The defendant could not be held liable simply because the case was determined at a later date when there existed a different accepted belief or a more modern understanding. Likewise the duty will only have been breached if the defendant fails in his or her duties and this test is assessed under an objective standard of care.
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