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The first element of negligence is the legal duty of care. This concerns the relationship between the defendant and the claimant, which must be such that there is an obligation upon the defendant to take proper care to avoid causing injury to the plaintiff in all the circumstances of the case.
Situations in which a duty of care have previously been held to exist include doctor and patient, manufacturer and consumer, [2] and surveyor and mortgagor. [3] Accordingly, if there is an analogous case on duty of care, the court will simply apply that case to the facts of the new case without asking itself any normative questions. [4]
Occupiers' liability is a field of tort law, codified in statute, which concerns the duty of care owed by those who occupy real property, through ownership or lease, to people who visit or trespass. It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises.
In the usual case, having established that there is a duty of care, the claimant must prove that the defendant failed to do what the reasonable person ("reasonable professional", "reasonable child") would have done in the same situation. If the defendant fails to come up to the standard, this will be a breach of the duty of care.
The establishment of a duty of care is usually broken up into a three-step test. The first case to establish a general duty of care was Donoghue v Stevenson. [3] Famously, Mrs Donoghue claimed compensation for illness after she consumed a ginger beer containing a decomposed snail in a public house in Paisley, Scotland.
Donoghue v Stevenson [1932] AC 562 was a landmark court decision in Scots delict law and English tort law by the House of Lords.It laid the foundation of the modern law of negligence in common law jurisdictions worldwide, as well as in Scotland, establishing general principles of the duty of care.
A solicitor owes a professional duty of care to the client and no one else. He or she is subject to professional rules and standards, and owes duties to the court as one of its officers. Thus, in general, when acting for the seller of land a solicitor does not owe a duty to the buyer. Similarly, Al-Kandari v J.R. Brown & Co. (1988) QB 665 held ...
The omissions of individuals are generally not criminalised in English criminal law, save in many instances of a taking on of a duty of care, having contractual responsibility or clearly negligent creation of a hazard. Many comparator jurisdictions put a general statutory duty on strangers to rescue [1] – this is not so