This paper will try to discuss and state a specific aspect of common law which is the duty of care. It will try to assess and to view the different features and characteristics of the duty of care and how it is applied to a particular situation. It will try to identify and emphasize the different viewpoint that this particular common law advocates.
The situation and facts of the case are these. Robert had been asked by his next door neighbor, Edgar, to help clear Edgar’s garden. This work required him to use dangerous equipment such as a chainsaw and powerful chemical weed killers. Robert was working in the garden clearing a patch of ground that had become a wilderness. He told Edgar’s 6-year-old son, James, to keep away
from the area. Unfortunately, whilst Robert was having his lunch, James went into the area that had been treated with weed killer and fell over a pile of
rubbish, landing with one hand in the weed killer. James developed severe
burns to his hand. Edgar was furious about what ad happened to his son and stormed into the garden to have words with Robert. Robert was using the chainsaw at the time and did not hear Edgar approaching and Edgar tapped Robert on the shoulder and Robert swung round in surprise,
catching Edgar with the chainsaw and cutting off Edgar’s hand.
The vital questions that must be asked in this case is, does Robert owe and breached a duty of care to Edgar and the legal implications surrounding the damages that was sustained by Edgar. Before explaining and answering these questions a proper rationalization on the rule of law must be made.
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they exercise a reasonable standard of care while performing any acts that could foreseeable harm others. For an action in negligence, there must be an identified duty of care in law. Duty of care may be considered a formalization of the implicit responsibilities held by an individual towards another individual within society. It is not a requirement that a duty of care be defined by law, but it will often evolve through the jurisprudence of common law. Individuals who are considered to be professionals within society are often held to a higher standard of care than those who are not. Engineers and doctors will be held to reasonable standards for members of their profession, rather than those of the general public in cases related to their fields. Breach of duty of care, if resulting in an injury, may subject an individual to liability in tort. Duty of care is an important prerequisite in the tort of negligence, as the duty of care must exist and must have been breached for the tort to occur.
Important cases have been tried and decided by different levels of the judiciary that makes the exact definition and the legal explanation regarding the subject of duty of care. These decisions and cases are tried to further define and to characterize the aspect and the nature of the phrase duty of care. These decisions are also significant since they provide the jurisprudence and the outline for other cases that touches the same topic which is duty of care. Among the cases that full explain and central to the idea of duty of care is the case titled Donoghue v Stevenson.
DUTY OF CARE
Donoghue v. Stevenson is a famous House of Lords case in the area of delict and tort law. From this case springs the core principle of the modern law of negligence and duty of care. It establishes a principle that has guided the courts to this day, and places the notion of a duty of care at the heart of the law of negligence. A duty of care is a term that the courts will use to determine whether the defendant is liable. It is only one factor that the courts will consider, but it will be the first question that the courts will ask.
The case is perhaps most well known for the speech of Lord Atkin and his ‘Neighbor’s Principle’ where he applied Luke 10 of the Bible to law. The practical effect of this case was to provide individuals with a remedy against suppliers of consumer products, even if they did not have a contract with them. The case, brought under Scots law, did not technically bind England, but nonetheless, due to the commonality between the Scots civil system and the English common law, the principle has since been adopted across the United Kingdom and elsewhere in the world. In 1990 in England the House of Lords restated the ‘Neighbor Principle’ of Lord Atkins to take account of public policy
In this case, May Donoghue alleged that she drank some of the contents of a bottle of ginger beer manufactured by the respondent. When a friend of Ms. Donoghue poured the content of the bottle, they saw a rotting snail on their beer. As a result, May Donoghue allegedly suffered shock and severe gastroenteritis. Because of her injuries and the pain that she suffered she sued the respondent.
In Donoghue v. Stevenson Lord Atkins stated the now famous “Neighbor Principle” with regards to the proper interpretation of the duty of case. Lord Atkin’s statement about the foreseeability of the effects of one’s acts on one’s neighbours is central to the existence of a duty of care in the law of tort/delict, especially on the then developing nascent tort/delict of negligence. In this judgement he formulates what is commonly known as the “neighbour principle”. In this legal principle he declared that;
…there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. … The rule that you are to love your neighbor becomes in law you must not injure your neighbor; and the lawyer’s question: Who is my neighbor? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law, is my neighbor? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.
In Donoghue v. Stevenson Lord Macmillan meanwhile asserted that ‘the categories of negligence are never closed’, in the sense that the courts possess the power to create new duty situations expanding the area of liability. In this case, Lord Atkin’s formulation of the ‘neighbor principle’ was not qualified by reference to particular kinds of loss nor to the distinction between acts and omissions. Subsequent courts however, interpreting the Donoghue opinions, soon came to the conclusion that their scope was limited to personal injury and damage to property. The broad ‘neighbor principle’ was treated as an obiter dictum, with the ratio limited to the particular case of the duty owed by a manufacturer to an ultimate consumer.
Lord Oliver further explained, that the discussion of duty of care should be located by reference to specific areas of liability such as negligent misstatements, the distinction between acts and omissions, liability for the acts of third parties, and the exercise of statutory duties and powers which represent the outermost boundaries of liability.
After Donoghue v. Stevenson, the law recognized a general duty of care protecting the personal safety and health and tangible property interests of an individual. Liability for physical harm caused by negligent misstatements is now well established as part of the Donoghue duty. The general duty may, however, be qualified in relation to certain types of plaintiff, such as trespassers, or may be specially extended to cover deserving claims such as those of rescuers. Certain defendants, such as public authorities and others serving the collective interest may benefit from a qualified immunity in respect of physical harm. The limited nature of liability for omissions also affects the protection accorded to physical interests. Finally, it must be remembered that, despite the existence of a general duty of care, claims for compensation for physical loss may be limited by other considerations such as remoteness and causation as well as by the
manner in which damages for loss are calculated in different cases.
REMOTENESS OF DAMAGES
The purpose of the rules about remote damages is to prevent somebody who is in breach of a duty, be it delictual or contractual, to be held liable indefinitely and without any limitations for any and all harmful consequences that arise from his breach of duty. Before looking in detail at the theoretical approach to remote damages as a method of seeing this, it seems useful to point out a few related issues to better understand the concept. The issue of remote damages can arise not only in the context of delictual liability, but anywhere in the legal system where a liability for damages can arise. Besides in delict this would be in contract. In both delict and contract generally the pursuer must not only show that the defender’s action caused the damages he suffered, but in addition he must also prove that these damages are not too remote. However, because of the different nature of contractual and delictual duties, the rules about the remoteness of damages are different in delict and contract. Basically, there are different tests in the law of delict and the law of contract in order to determine the sufficient remoteness of the damages in question. In this portion only the rules about remote damages in delict will be discussed.
In order to receive damages, the pursuer has to show the chain of causation. This consists of two individual steps: There has to be a causal connection between the defender’s original conduct and the injury suffered as a consequence thereof, as well as between the caused harm and the losses arising out of it. In each of those two steps the question of remoteness can arise. In addition to the factual causation, the necessary proximity between original conduct and injury respectively injury and loss has to be established.
If an injury is too remote to be legally connected with the defendant’s original conduct, as a consequence the defendant cannot be held liable at all. The concept of remoteness of injuries is therefore used to determine the existence of any liability on the part of the defender. Contrary to this, remoteness of damage is concerned with the extent of liability once it has been established. The more recent literature seemingly does not consider the concepts of remoteness of injury and remoteness of damage to be necessarily connected. The problem of remote injuries now obviously is sometimes seen as an aspect of the delictual duty of care.
Although there is unanimous agreement on the fact that damages do not only have to be causally connected but also must not be too remote from the injury, there are different opinions on how it should be determined if a damage actually is too remote to be recovered from the defender. The most commonly cited classical authority in determining the remoteness of damages is the Obiter Dictum by Lord Kinloch. He states that:.
…the grand rule on the subject of damages is, that none can be claimed except such as naturally and directly arise out of the wrong done; and such, therefore, as may reasonably be supposed to have been in the view of the wrongdoer.
Lord Kinloch’s statement suggests a direct and natural consequences test, whereas in the end it introduces the reasonable foresight of the defender as a criterion for determining the remoteness of damage. Therefore Lord Kinloch has actually referred to a series of test of tests that that will determine the remoteness and extend of damages or injuries.
When the damages and injuries have been measured and assessed, the defendant through the orders of the courts has to pay the offended party for the damages that he/she had caused. Damages and compensations are awarded by the court to restore the plaintiff to the pre tort position. Personal injury and property damage may both have economic consequences. A person who sustains an injury may lose not simply the use of a limb but also the earning capacity which goes with it. He will receive compensation for loss of future earnings as well as for loss of the limb and facility in question. As far as property damage is concerned, the courts will have primary regard to the market value of the property in question when assessing compensation for its loss. In these cases the law of tort provides compensation for economic losses arising directly out of physical loss
Damages are classified as physical harm and damage to property and pure economic loss. Economic loss is further categorized as liability for negligent misstatement, negligence in the performance of a service, economic loss arising from defects in building and products and relational loss arising from damages to the property of a third party.
In the situation presented in the beginning of this paper, Robert owe a duty of care to Edgar in the scenario since he is inside the premise of Edgar’s property and he is working and dealing with harmful chemicals and dangerous equipments. Duty of care also exists on Robert since he was asked by Edgar to help clean the garden. Because of this duty of care, Robert must exhibit the a standard of care wherein every aspects of his work does not compromise and endanger Edgar and other individuals.
In the circumstances that followed Robert was clearly in breach of the duty of care that is mentioned. First, he since he was working with chemicals namely the weed killer, he did not foresee that leaving a weed killer can do damage and injure someone, in this case, the son of Edgar. He was also negligent with regards to the circumstances on how the son of Edgar came into contact with the weed killer. Aside from carelessly leaving the weed killer without proper precaution and prudence he also neglectfully failed to clean up the a pile of rubbish causing the son to fell over.
Another breach of the mentioned duty of care in the part of Robert is the accidental injury suffered by Edgar when he was injured by the chainsaw being used by the defendant causing the amputation of the hands of the latter. On the part of Robert, care must be properly observed in handling and using dangerous equipments such as a chainsaw. A standard of care should be implemented by Robert when he is using the chainsaw. When he injured Edgar he is negligent and careless since he immediately turned around without properly assessing the situation around him. It can be argued that Robert did not exhibit the proper caution and vigilance that is necessary in his part.
With regards to the injury suffered by Edgar, he must be justly compensated for the damages that he endured. Compensations and monetary reparation must be made using factors such as loss of income and competitive advantages that his work would bring since he had lost the use of one of his arms due to the injury. Plaintiff can also be entitled for the loss of enjoyment of life, pain, suffering and embarrassment brought about by the accident. The court can also award money to give the plaintiff an alternative gratification equivalent to the lost of a main body part, namely the hand. Lastly damages can also be sought by Edgar with regards to the hospital bills, medicines and other expenses related to the treatment of his injuries.
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