Tort of negligence: what is duty of care?
Negligence in tort is made up of three elements and to prove that someone was negligent, the three elements need to be established. The three elements include;
1. Duty of care
2. Breach of that duty
3. The breach caused damage
If the above three elements are met then there is a liability for negligence.
However, just establishing the above three elements does not necessarily give rise to liability in negligence as further elements have to be established. These further elements are known as causation and polic reasons. And the further elements are not applicable the defendant may not be held liable even though the elements of duty of care, breach and damage have been established. More on this later as this article is mostly about the element of Duty of care.
Duty of care simply means responsibility or carefulness. In everyday life we all owe a duty of care to people who may be affected by our acts. Examples may include fellow passengers on a train or a bus, a fellow driver or a pedestrian on the road etc. Doing or NOT doing something that has the potential to cause harm or damage generally indicates that there was a duty of care.
Duty of care is itself made up of three elements;
Proximity: The term “proximity” does not mean the person next to us but can be anyone who may be harmed or suffer damage due to our act or omission. For example, say A was driving on a motorway and was typing on his mobile at the same time. A’s carelessness causes a collision with another car in the next lane. The injured driver in this scenario can be anybody from anywhere but still has the proximity with A. Similarly a manufacturer who, for example, produces electrical devices may not know who might be the end users of its products but the manufacturer still has the proximity with them.
Foreseeability: The element of foreseeability is rather simple to explain. All it asks if it was foreseeable that an act or omission which caused someone injury or damage was foreseeable. If the answer is Yes then it was foreseeable.
Fair, just and reasonable: And lastly, if there was proximity and foreseeability, would it be fair, just and reasonable to hold the defendant liable? Fair, just and reasonable is to make sure that despite proximity and foreseeability, holding someone liable for a breach of duty of care will not make it illogical or unfair.
Once the elements of proximity, foreseeability are found and it would be fair, just and reasonable to hold the defendant liable, the duty of care is established.