An Introduction to Negligence and the Duty of Care

Published: 30th December 2011
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The twin ideas of negligence and a duty of care, and their legal definitions, are inextricably linked and both fall within the area of law known as tort law. This article aims to give a brief introduction to this area of law without delving too deep into the complex machinations that govern it.

Tort Law
The legal concepts of a Duty of Care and Negligence both fall within the area of law known as Tort Law - as distinct from criminal law. Whereas criminal law centres on the idea of a crime, tort law instead concerns what are known as ‘wrongs’ and so cases can be brought by a plaintiff or claimant against a defendant if they feel they have been ‘wronged’. As the intention of tort law is to remedy these wrongs rather than punish an offender who is responsible for a crime, tort prosecutions are therefore usually brought by individuals against other individuals in private prosecutions rather than being brought by the state (as is the case with criminal law).

Tort law further differs from criminal law in the way that rulings enter into law. Criminal law is defined in legislature as passed by the government and law courts. Tort law on the other hand mostly relies on case law or common law; that is cases are decided based upon the precedents set by the previous rulings on similar legal scenarios (although there are some statutory torts that are defined in legislature).

There is in reality an overlap between tort law and criminal law and most criminal offences would also constitute a tort offence. For example, the crime of assault would also wrong the victim and result in a tort of assault. However, prosecution by the state of the criminal offence would usually take precedence and the tort would only be pursued by the plaintiff in the event of an unsuccessful criminal prosecution.

In terms of the resolutions that tort law achieves it differs from criminal law in that cases are usually remedied by the awarding of compensation to the claimant and in some cases injunctions against the defendant (or tortfeasor), rather than custodial sentences as a punitive gesture. The compensation awarded in such cases usually aims to restore a plaintiffs financial position to the state it would have been in if they hadn’t been wronged by the tortfeasor, in a concept known as restitutio in integrum. Injunctions on the other hand, which are usually granted when there is a likelihood of the tort recurring, are usually defined in terms of actions that the tortfeasor is ordered to desist from, such as publicising information, but can sometimes include actions that they must carry out to prevent a further tortious act (e.g., clearing an offending rubbish pile).

Duty of Care
The definition of a duty of care is an obligation that exists between two parties to do no harm to each other, when harm could be anticipated, when they enter into a relationship or interaction that isn’t already defined by a contract or familial ties (and therefore does not already have coverage in legislature). It is a similar concept to the idea of a social contract; an obligation of an individual in society to respect the rights of the other members of society. In simple terms there needs to be a case that one individual’s actions will or can affect the other and that the effects are foreseeable to prove a duty of care.

There are many examples of the relationships which would constitute a duty of care in everyday scenarios, such as those between co-workers, fellow road users, a doctor and patient and even a manufacturer and consumer.

Where a relationship can be proven to exist between two parties the operation of law can be defined as applying to that relationship and therefore the duty of care that each party has towards the other can be established.

Whether relationships can be considered to legally instigate a duty of care has to be decided based upon legal precedents within the sphere of case law; that is, as is the case with tort law in general, there is usually no legislature that has been passed into law and judicial verdicts will be made in accordance with precedents set by courts.

Negligence
The area of law that negligence covers is when a wrong is not committed intentionally but results from careless actions - a failure to take the appropriate care when the individual is in a situation where it can be reasonably anticipated that their activities could potentially do harm to others. In other words negligence occurs when an individual breaches their duty of care. Negligence can affect not only the individual’s physical and mental health but also their property and finances.

Negligence cases are usually broken down into what are known as elements, of which the plaintiff must establish each and all to have a valid negligence claim. The first of these are that the duty of care existed and that the duty was then in fact breached. Subsequent elements can concern whether harm resulted directly from this breach (and the cause wasn’t too remote) and whether the appropriate corrective action is to award damages or compensation to the plaintiff or claimant.

It is important therefore that the risk of harm to others must be foreseeable at the time of the alleged negligence not just with the benefit of hindsight or knowledge of subsequent events.

Once a case of negligence has been established the amount of compensation that a plaintiff can be awarded will often be considered separately under liability law.

As with all legal issues, tort law is a very complex subject, and therefore if you think you may be impacted by it, it is always paramount to seek the best possible advice from qualified experts. For example, if you feel that you may have suffered from negligence while in the care of medical or clinical services you should seek guidance from trusted Medical Negligence Solicitors.

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