Duty of care Definition

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GLOSSARY

What does Duty of care mean?

A duty of care refers to the circumstances and relationships giving rise to an obligation upon a defendant to take proper care to avoid causing some form of foreseeable harm to the claimant in all the circumstances of the case in question.

Once a claimant has established the necessary duty of care owed by the defendant, determined pursuant to various legal tests and depending on the nature of the case, and proven loss or injury that was foreseeable and which stemmed from a failure to take appropriate care in the particular circumstances of the case, the defendant could be liable to pay damages to a party who was injured or who suffered loss as a result of that breach of duty.

View the related checklists about Duty of care

Negotiating repair obligations in Scottish commercial leases—checklist

Negotiating repair obligations in Scottish commercial leases—checklist At common law a landlord, in comparison to a tenant, has quite onerous obligations in so far as the maintenance and repair of a let premises is concerned, see Practice Note: Repair clauses in commercial leases in Scotland—Repair under the common law. In commercial leases, it is almost universal practice for the landlord to seek to divest itself of all common law repairing obligations in relation to the premises let to the tenant (but not the common parts in multi-let buildings, see Practice Note: Service charge and outgoing provisions in commercial leases in Scotland). As such, commercial leases typically impose significant repairing obligations on the tenant. The most common form of commercial lease is a full repairing and insuring (FRI) lease where the tenant is responsible for all repairs of whatever nature with the exception of insured risk damage, see Practice Note: Repair clauses in commercial leases in Scotland—Contracting out of the common law—the full repairing and insuring (FRI) Lease and The modern...

Collateral warranties—checklist

Collateral warranties—checklist This Checklist sets out the key issues to consider when drafting or reviewing a collateral warranty. For an introduction to collateral warranties generally, see Practice Note: What are collateral warranties? Requirement to provide warranties • Does the underlying building contract, consultant’s appointment or sub-contract (as appropriate) require the intended warrantor to provide the warranty (see for example: Collateral warranties clauses)? If not, the intended warrantor is not obliged to give the warranty that is being requested but, if asked, may agree to do so The beneficiaries • It is standard market practice for warranties to be provided to the following beneficiaries: ◦ funders ◦ any first purchaser of the whole or a substantial part ◦ any first tenant of the whole or a substantial part ◦ employer (if the warrantor is a novated consultant or sub-contractor) ◦ freeholder • Any other beneficiaries would be considered unusual and may be resisted by the warrantor (see table: Who gets a collateral warranty?) Consistency with underlying contract...

Breach of the duty of care in personal injury claims

The reasonable person testOnce a court has determined that a common law duty of care exists between the parties, the next stage is for the claimant to prove that the defendant has breached this duty ie the defendant’s conduct has fallen below the standard of care required. Although expert evidence may be obtained this is usually a question of fact. For guidance on whether a duty of care is owed, see Practice Note: Duty of care in personal injury claims.In assessing whether the defendant has breached the duty of care, the court will normally use the reasonable person test ie what would the reasonable person have done, or not done, in the circumstances of this particular incident. For guidance on breach of duty in clinical negligence claims, see Practice Note: Duty of care and breach in clinical negligence claims.When considering the standard of care required of the defendant, the court may consider:•the capacity of the defendant eg age—see below•whether the claimant gave consent—see below•the cost and difficulty of the defendant...

Duty of care in personal injury claims

This Practice Note will consider the common law duty of care. For information on statutory duties, see Practice Note: Breach of statutory duty and the overlap with the common law.For breach of duty of care, see Practice Note: Breach of the duty of care in personal injury claims.For guidance on vicarious liability, see Practice Notes: Nature and operation of vicarious liability, Scope and impact of vicarious liability and Vicarious liability in the course of employment—the close connection test.For information on the duty of care in clinical negligence claims, see Practice Note: Duty of care and breach in clinical negligence claims.For a claimant to succeed in proving their claim in common law negligence they must first prove that the defendant owed them a duty of care.Examples of established relationshipsWhen assessing whether a duty of care exists, the court will consider whether there is an established precedent for the relationship between the parties and follow the precedents unless it is necessary to consider whether they should be departed from.Common examples of situations...

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Particulars of claim for failed dental implant

Particulars of claim for failed dental implant IN THE [INSERT COURT] COURT Claim No [claim number] BETWEEN:— [CLAIMANT’S NAME] Claimant and [DEFENDANT’S NAME] Defendant ______________________________________________________________________________ PARTICULARS OF CLAIM ______________________________________________________________________________ 1 The Claimant was born on [insert date]. 2 At all material times, the Claimant was a patient of the Defendant who carried out a practice as a self-employed general dental practitioner from premises at [insert address] (“the clinic”) and held [himself OR herself] out to be an experienced, skilled and competent dental practitioner. 3 The Claimant first attended an appointment with the Defendant on [insert date] for [insert details of treatment]. 4 In summary, the Claimant alleges that the dental treatment provided to [him OR her] between [insert dates] was negligent as set out in these Particulars of Claim. As a result, [insert details of causation and loss]. The events giving rise to the Claim 5 On [insert date], the Claimant attended an appointment with the Defendant for [insert details] [[Insert background facts—setting out chronology in relation...

Letter of claim—negligent misstatement by bank

Letter of claim—negligent misstatement by bank [ON THE HEADED NOTEPAPER OF CLAIMANT’S SOLICITORS] FAO [RELEVANT NAME] [NAME OF PROPOSED DEFENDANT’S SOLICITORS, IF ANY] [ADDRESS LINE 1] [ADDRESS LINE 2] [POSTCODE] [DATE] Dear [insert organisation name] [PROSPECTIVE CLAIMANT’S NAME] AND [PROSPECTIVE DEFENDANT’S NAME] [We write further to our letter dated [insert date] OR We write further to your letter dated [insert date]]. [As you know, we OR We] act on behalf of [insert client’s full name], whose address is [insert full address]. This is our client’s letter of claim sent in accordance with the Practice Direction Pre-Action Conduct and Protocols of the Civil Procedure Rules (the Practice Direction), a copy of which is enclosed for your ease of reference. We draw your attention to the final section of this letter, which sets out the deadline by which your response is required, and the consequences of failing to respond properly within that time. [Your client should notify their insurer of this claim immediately. We would be grateful if you could...

Dive into our 76 Precedents related to Duty of care

Who is responsible for an occupier's liability claim when the accident occurred in premises subject to a lease? The tenant company had ceased trading before the accident and a new tenant company had not entered into a new lease agreement with the landlord.

Who is responsible for an occupier's liability claim when the accident occurred in premises subject to a lease? The tenant company had ceased trading before the accident and a new tenant company had not entered into a new lease agreement with the landlord. This Q&A considers who may qualify as an occupier under the Occupiers’ Liability Act 1957 (OLA 1957). OLA 1957 contains no definition of an ‘occupier’. The issue of who is an occupier is dealt with under the common law. It is important to recognise that the key issue is of control over, rather than ownership of, the premises. An occupier is any legal entity with a sufficient degree of control over premises such that it can properly be considered to be an occupier (see Wheat v E Lacon). The key element is that the occupier has effective control. There is no requirement for the occupier to have a legal interest in the land. There can be multiple occupiers of premises at any given time. It has...

If a claimant receives negligent home care, is this considered clinical negligence?

If a claimant receives negligent home care, is this considered clinical negligence? Duty of care Duties to patients in contract: Butterworths Personal Injury Litigation Service [211] states: ‘Where a health professional undertakes private practice, a contractual relationship is likely to arise between the patient and the health professional. In the absence of an express term to the contrary, a term will be implied into that contract that the service will be performed with reasonable care and skill. In the case of private hospital treatment, most doctors undertake such services as independent contractors. Thus, for example, there may be separate contractual relationships in respect of the provision of nursing care, resident medical officers and laboratory services.’ Duties to patients in tort: Butterworths Personal Injury Litigation Service [215]: states: ‘A duty to exercise reasonable care and skill is imposed on a health professional who undertakes the tasks of diagnosis, advice or treatment. The duty exists independent of any contractual duty that may exist. The duty arises once the patient is accepted for...

See the 211 Q&As about Duty of care

Challenging the decision not to prosecute (R (on the application of Hillary Smith) v Director of Public Prosecutions)

Corporate Crime analysis: The decision of R (on the application of Hillary Smith) v Director of Public Prosecutions in the High Court provides important guidance on the relevance of inquest verdicts to the Crown Prosecution Service’s (CPS) decision on whether or not to prosecute; the approach the courts will adopt in judicial review proceedings when assessing the reasonableness of the CPS’s application of the two-stage test in the Code for Crown Prosecutors, and the elements of the offence of gross negligent manslaughter. The jury at the coroner's inquest had returned a verdict of unlawful killing, however, despite this verdict, the CPS decided not to prosecute saying the inquest verdict in itself cannot be taken as a foundation for criminal proceedings because that decision was made on the balance of probabilities. The CPS had to consider whether a jury could be sure on the criminal standard which required a different approach. Furthermore, the court explored the latitude that should be afforded to decision makers. The decision of a crown prosecutor in...

Asda faces 60,000 claims in largest-ever equal pay case

Law360: A group of retail workers for the Asda supermarket chain urged an employment tribunal on Monday 9 September 2024 to find that their work is of equal value to warehouse employees, in the opening of the UK's largest-ever private sector equal pay claim.

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