Derby injury claim solicitors

McIntosh Fleming Lawyers, specialise in Derby no win, no fee claims, and we guarantee that you keep all of your compensation without any deduction for our charges.Get in touch with Derby Lawyers by e-mailing , or ring us on 01332 518135 .

Duty of care

The duty of care is not simply a duty not to act carelessly; it is a duty not to inflict damage carelessly, since damage is the basis of the cause of action.

The existence of a duty of care is decided by the court as a question of law, but in doing so the court will have regard to evidence of the relationship of the parties and the dangers likely to arise in given circumstances. In many kinds of relationships the existence and extent of a duty of care has been recognised by the law over a long period. Examples may be found in the duties of road users and of navigators at sea to avoid collisions, of occupiers of buildings to prevent damage from dangers on the premises, and of employers for the general safety of their workers.  Nonetheless the law of negligence is still evolving and there are recent examples where the courts have decided both the existence of a duty of care or have found that a duty of care does not exist.

A court is likely to be faced on occasions with circumstances which are not obviously in the same category as those in which a duty of care has previously been found to exist. Then the court must decide whether the defendant owes the claimant a duty of care. More accurately: did this category of defendant owe a duty to this category of claimant not to cause damage of the kind which harmed the claimant? In this context it is important to distinguish between the question of whether a notional duty of care exists, and the narrower question of whether a factual duty is owed to the claimant and whether the kind of damage is too remote. A notional duty applies to a general class of relationship and damage. Once a notional duty of care has been accepted, then the question is whether the particular claimant comes within the scope of that duty so as to render the damage attributable. So it is an issue of factual duty. Specifically, does the defendant owe a factual duty of care to the particular claimant? However, it is important to note that as a general rule it is not necessary that the claimant should have been within the defendant’s contemplation as an identified individual. It is sufficient if he falls within the class of persons who might foreseeably suffer the particular loss to which the duty relates.

In Caparo Industries plc v Dickman  the House of Lords, while affirming the ‘traditional categorisation of distinct and recognisable situations as the guides to the existence, the scope and the limits of the varied duties of care’, also enunciated a three-stage test of liability: first, sufficient proximity between the parties; second, that it is fair, just and reasonable to impose a duty of care; and, third, that injury to the claimant is reasonably foreseeable.

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