We all bear certain responsibilities. These responsibilities may form on the basis of our profession, our home life, or in society at large. With responsibility, comes a duty of care. It is very important to know where and how these duties of care arise. If you are aware of when and where a duty of care may exist, you will be better able to fulfil it.
What is a Duty of Care?
A duty of care is a type of legal obligation imposed on an individual requiring you to exercise a reasonable standard of care. This applies while performing any acts that could potentially harm others. This is is the first thing that must be proven in a negligence claim. These duties can be either positive actions or omissions. In other words, it may involve doing an action or refraining from doing an action.
For example, you may have a duty of care to check both ways before entering an intersection while driving. Consequently, you then have a duty of care not to enter that intersection if it will cause an accident.
There are a few different types of care that can apply to general circumstances as well as professions:
- Legal
- Professional
- Personal
- Fiduciary
In the Workplace
Whether you own a business or work for an employer, a duty of care can arise in your profession and may be noted in your employment contract. If you are in a workplace where foreseeable risks are apparent, you must exercise caution and care. This may be building sites, factories, or any work environment where potential dangers occur. As an employer, it is your responsibility to look after the well being of your employees. These are ‘professional’ duties. This also extends to people engaging with your business. Accordingly, your company may be accountable for the actions of employees. This is known as vicarious liability.
On the Road
You and other road users owe a ‘legal’ duty to each other. This includes pedestrians, cyclists, passengers, motorcyclists, and anyone else who makes use of a road. Any road users who fail in their duty of care, and cause a road traffic accident, could be liable for the harm they contribute. For example, if you fail to look left and right before entering an intersection, you will have breached that legal duty owed to other road users. It is important that you exercise care and caution wheresoever foreseeable risks to people’s safety exist. These obligations apply both criminally and civilly.
Premises liability
Landlords and occupiers of premises have a ‘legal’ duty to take reasonable care to maintain premises so as to avoid injury or damage to anyone who enters the premises. If you do not own the premises, but occupy it, you could still owe a duty of care to others that enter. You must ensure that the interior is a safe place for all. If the premises is a dangerous place because of the work conducted there, you need to implement adequate warnings.
Offering Recreational Services
Recreational activities can be dangerous. Therefore, it is imperative that you exercise appropriate caution and care. Implementing warning signs may help people understand the dangers, but they do not alleviate you of your responsibilities entirely. Additionally, liability waivers do not preclude you from wrongdoing all together either. It may be worthwhile speaking with a sports lawyer for recreational related activities.
Your Pets
We all love our pets. However, sometimes they are not as friendly to others. If your dog attacks another person and you have failed to exercise the requisite care needed to avoid that attack, then you may be liable. It is very important to know that even these types of personal and seemingly private aspects of your life bear responsibilities owed to others. It might mean that you ensure you keep you dog on a leash whilst out in public.
What Happens if a Duty of Care is Breached?
When a duty of care is breached, a legal claim may be brought against the person or entity that breached that duty of care. The party making the claim will seek to prove liability. An originating motion known as a statement of claim may commence. If it remains unresolved between the parties, the matter will proceed to Court.
Firstly, the court will attempt to establish whether a duty of care existed. Secondly, the court will determine the level of that care. Thirdly, it will establish whether the actions of one party amounted in a breach of that duty of care, contributing to the harm incurred by the other party. Finally, it will determine to what extent damages are owed to the party making the claim. This is what is known as the harm or loss suffered. Sometimes however, breaches occur from multiple parties. You may still be entitled to compensation in part due to the duty of care that was owed to you. This is known as contributory negligence. The court will then apportion damages in a ratio that best fits the circumstances.
As you can see, there are a number of instances where a duty of care may arise. Whilst you may do your best to uphold and maintain that duty, sometimes accidents can occur, and the unpredictable happens. If you are uncertain about your circumstances, a negligence lawyer for assistance.
