Terminology II

Duty of Care

The courts have determined that everyone has a duty not to injure our neighbour. 'Neighbour' in this context means a person or persons who are so closely and directly affected by another's actions that the other person ought to have thought about them being affected when he or she was planning the acts or omissions that are now called into question. For an individual to be liable, the results of the actions have to be reasonably foreseeable by a reasonable person.

In general, the meaning of the term 'neighbour' is expanding to include parties who have no 'legal connection' to a case of negligence. For example, if the ceiling of a building collapses, an injured customer might sue the engineer who originally designed the building as well as the contractor who was contracted to build it. This is often referred to as 'Third Party Liability'. The outcome of every case is decided on an individual basis.

Breach of Duty of Care

Assuming the defendant has a duty of care, the question is now asked: Did the defendant meet the appropriate standard of care, given all the facts of the case? To answer this question, the court asks: What would a reasonable person with the same background or expertise have done in the same situation? If the defendant has not met that standard of care, the defendant could be found to have breached their duty of care.

In making this assessment, the courts often look at such factors as:

  • the likelihood of damage;
  • how serious this damage might be; and
  • what sort of people are likely to be affected and how vulnerable they might be.

As society becomes more litigious, the expected or required standard of duty becomes all the more important and individuals must be aware of what is expected of and by their profession.

Causation

With the duty of care and the breach of this duty demonstrated, the court now decides if the defendant's actions caused the injury to the plaintiff. This is often not as straightforward as it sounds because, while a defendant's conduct may be considered 'wrong', it might not have automatically caused the plaintiff's misfortune and may be judged too 'remote'. Remoteness of action and injury is therefore often used by lawyers to defend their client.

There is no clear set of rules to help make these determinations and courts view cases individually while making decisions through a practical, commonsense approach.

That said, one of the 'rules of thumb' used by courts is that victims are taken 'as they are found.' In other words, even if the defendant doesn’t know about a plaintiff's pre-existing condition, they are still liable for paying full compensation.

Air Precision 2017

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