a) The Duty of Care Owed by One Person to Another

According to the law of torts, the duty of care owed by one person to another involves the contractual obligations that an individual agrees to after deciding to enter into a contract with another person. The law applies only to people, who are the party to the contract. Thus, they are allowed to complain in case of a breach of the contract. The duty of care usually arises once a person has entered into a contract to perform a certain activity (McDonald, 2015). For example, in a contract for construction of a building, the people who are affected by the construction activities have the right to complain about a breach of the duty of care.

On the one hand, for the law to explain the ambiguity that may exist in the extent of the duty of care, it places some limits on the categories of persons, who can launch a complaint upon breach of the duty. On the other hand, the nature of the duties of care varies from the responsibility to maintain a safe working environment to the obligation to provide a professional standard of employment (Welch, 2014). To ascertain whether the duty of care exists, one requires considering a legal duty of care to another person as defined by the courts.

In practice, the legal relationships concerning the duty of care between an employer and an employee, as well as between a professional and a client are clearly outlined in the law. Moreover, the compensation for the damages caused is stated legally (Burrows & FBA, 2016). However, for the sake of other categories without clear explanations of the provision by law, the courts are mandated to create new classes where a breach of the duty of care occurred (Palmer & Maclachlan, 2015). They define the categories by considering numerous facts of the relationship between the two parties and the public policies.

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In cases whereby the relationship to a duty of care has not been established, the courts may create a new correlation by taking into account numerous factors. Firstly, the courts consider the kind of economic, mental or physical harm that is suffered by the plaintiff (Truscott & Crook, 2013). Secondly, the legal bodies evaluate the possibility of the defendants control over the situation that led to the harm and the plaintiff vulnerability to the harm. Thirdly, the courts consider the nature of the relationship between the plaintiff and the defendant in comparison with the duties of other relationships (Zipursky, 2015). The judges also study the ethical and moral aspects, as well as the coherency of legal principles and relationships.

In a case of Brickhill v Cooke (1984), a prospective purchaser of a property entered into a contract with an engineer to inspect the target building and provide a written report. Upon entering into the contract, the engineer conducted the inspection and confirmed the property to be structurally sound; thus, convincing the buyer to make the purchase. However, the new owners discovered that the building did not meet the standards, and the engineer had failed to identify some structural defects (Jayyusi, 2014). The outcome of the case was that the engineers failure to report the defect meant that he lacked a reasonable degree of competence required from a professional engineer. Therefore, the engineers duty of care existed in the contractual obligations; hence, the court ruled that the worker was liable to the new owners under the terms of their agreement (Boszormenyi-Nagy, 2014). Moreover, the court established that the engineer was also liable to the new owner for negligence. The individual faced responsibility for the breach of the duty of care and negligence.

If the risk for the plaintiff and defendant is reasonably foreseeable, the court may rule that the defendant has a duty of care to the plaintiff. The court can consider the significance of the danger and the nature of the harm suffered by the plaintiff. If the risk involved is significant, the defendant is held liable for the breach of the duty of care against the plaintiff (British Medical Association, 2012). The nature of the harm suffered by the claimant will also determine the outcome of the case in case the relationship between the two persons is not outlined by the law.

Despite the provision that in most cases the defendant is most probably liable for the breach of the duty of care, the plaintiff is required to prove the committed offense for the defendant to be held liable. It requires the plaintiff to satisfy the claim that the person ought to have known the possibility of the risk occurring, the significance of liability involved, and a reasonable person in the position of the defendant to take precaution (Sealy & Worthington, 2013). Many courts consider the three factors when determining a case on breach of the duty of care; thus, there is the need to critically analyze the aspects.

The provision that the person ought to have known about the risk is a requirement for the court to rule that a person is liable. The factor can be illustrated in the case of Donoghue v Stevenson (1932) that relates to the remains of a snail in a bottle of ginger beer. Donoghue stressed the importance of the reasonable foreseeability of the injury that resulted from defendant’s lack of action. For the factor to be applicable there has to be a connection between the alleged negligence by the defendant and the harm befallen on the plaintiff. Another case that illustrates the factor is the Verwayen case, where the Commonwealth was held liable for breach of the duty of care because a ship sunk as a result of negligence (Sealy & Worthington, 2013). Thus, Commonwealth was liable for the tort because it breached its duty of care through the act of negligence.

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(b) The Standard of Care Owed by One Person to Another.

Breach of the duty of care arises from the negligence. The person acts or fails to act in a way that causes harm to the other individual. However, some harm may be caused by negligence, while other injuries may result from accidents. Therefore, the standard of care required in a given circumstance is used to ascertain whether the injury to the plaintiff resulted from an accident or an act of negligence (MacKay, 2015). Neglecting a standard of care will hold the defendant liable for the breach of the duty of care, since failure to adhere to the required care is termed as total negligence.

Mostly, the standard of care is described as the behaviour, which a reasonable person would show if subjected to similar situation experienced by the defendant. For example, any driver is expected to obey the traffic laws as a designated driver. However, if a short-sighted driver forgets to wear glasses and hits a pedestrian, he would be held liable for the caused injury because a reasonable short-sighted person would not drive without wearing glasses (Morgan, 2012). The decision to ascertain whether someone has acted as a reasonable person or not is an objective one; therefore, the courts are allowed to make the decision upon some considerations. To prove that a person acted against the reason, the court will consider the defendants knowledge, experience, and perception about the situation.

In the case of Bolton v Stone (1951), the plaintiff was hit by a cricket ball that came from the defendant’s cricket club. The club had erected a high protective fence that could prevent the balls from being hit out of the ground; thus preventing potential injuries. Therefore, the risk of the cricket ball posing danger was very low through the action of the defendant that implied a standard care a reasonable person would have taken (Brayne, Carr & Goosey, 2015). Consequently, the defendant was not on a breach of the duty of care given that his actions were beyond the standard of care required. Thus, provided the defendant has taken reasonable measures to prevent an accident, in the case of its occurrence, it should be treated as mere accident rather than negligence.

The standard of care for a child is a different phenomenon, because children are not expected to act as a reasonable adult (Purran, Weller & Kerr, 2016). Therefore, courts hold children to a different standard whereby the actions of a child are compared to other kids of the same age, experience, and knowledge (Kittay, 2013). The standards of care administered by courts vary among people due to their ability to act as reasonable persons. Therefore, children and aged individuals are granted some leniency because their liability for torts committed is not equated to that of the people of average age (Jackson, 2013). The criminal law is used by courts when evaluating torts committed by children. It provides that kids between the one and seven years old are not liable for negligence. However, children between the age of seven and fourteen are responsible for negligence subjected to some conditions.

The case of Mullin v Richards (1998) illustrates that child defendants are expected to show the standard of care that can be reasonably expected from an ordinary child of the same age. For example, the plaintiff’s eye was injured during a sword fight with the defendant. In reality, the 15-year-old children were using plastic rulers as swords. One of them snapped causing the injury. The judge ruled that the defendant was not liable because there was insufficient evidence that the risk had been foreseeable (Herring, 2014). However, the court added that such ruling was also based on the age factor, while establishing the standard of care required in the situation.

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Risky involvements tend to require a high standard of care to prevent the risk from occurring. According to the case of Watt v Hertfordshire County Council (1954), the plaintiff, who was a firefighter, was injured by heavy equipment used for lifting vehicles t at a scene of fatal accident. The heavy machine had slipped off the back of the vehicle. The fire officer from the defendant’s firm had ordered for the use of ordinary lorry to carry the equipment as the vehicle employed for the purpose was engaged in another task (Eekelaar & Dingwall, 2013). The court ruled that saving the woman trapped in the accident was more important than the risk of injuring the firefighters by using inappropriate lorry for carrying the equipment. Therefore, the defendant had reached the standard of care required by law; hence was not liable for the tort.

Special standards of care may apply in cases, when the defendant is perceived to possess some special characteristics, knowledge or skills. In some circumstances, the defendant will be expected to complete the tasks to achieve the standards of a reasonably skilled person (McCormack, Manley & Titchen, 2013). Therefore, the expectations from a trained person will be high compared to the accomplishment of an unskilled person. In the case of Bolam v Friern Hospital Management Committee (1957), the plaintiff was injured after receiving treatment from the defendants hospital. There was a heated debate among the medical experts over whether the treatment was executed in the safest way possible. However, the argument never arrived to the conclusion (Archard, 2014). The court held that a junior doctor portrayed the same standard of care as a reasonable medical worker; thus, the doctor was not in a breach of the standard of care, as he acted following the medical practice. The ruling of the case shows that persons with some skills are expected to act following the standards of the abilities irrespective of their level of experience.

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