Transcript of Duty of Care Overview

Welcome once again to the law professor. In this presentation, we're looking at um the following learning outcomes to define negligence as a thought and then to look at um um duty of care, the various components of duty of care. Um when you're talking about the thought of negligence, you notice that we call it a thought of negligence. We not just talking about carelessness or inadvertence. You know, we're talking about a cause of action under the law of thought. And um a simple definition of the thought of negligence would be that um when you do something which a reasonable and prudent man would not do or failing to do something which a reasonable and prudent man would do. Okay. So um it is a it's it's a thought that regulates your conduct the way we behave in society. And this behavior could cover any kind of interaction we have whether on the streets, whether in the home, whether in our places of work as professionals. You know, you're talking about how do you comfort yourself in a way that um anybody looking at you would believe that you have acted like a reasonable and prudent person in the circumstances that is presented before you. And um we would also be looking at um the element of duty of care which uh we've established is the first element that is usually looked at to even determine whether there is a case at all. So when you have a case scenario maybe a question you're a student or a practicing lawyer you are looking out for where is the duty that's the starting point of the inquiry and um the elements of the thought of negligence like I've often said is include the duty of care the breach of duty and damage and um the duty of care that there must be a legal obligation that you have there is a duty that the law has imposed We've gotten past the point where we you know we have to discuss the fact that itself is a breach of duty that the law fixes and not necessarily based on on contract. Now the duty the definition that I've given you that talks about the reasonable and prudent man. So that means that there is a standard that we are owing a a defendant onto that and that that is standard of a reasonable person which we'll be looking at later. Now the thought of negligence I must say is not actionable per say you must prove that there is damage you know an injury harm that has been suffered. This damage could be for instance a damage to a vehicle. You claim for instance that somebody did not drive their vehicle well the way that a reasonable driver would have driven then you have and your vehicle was damaged. It could be to say that the engineer that constructed the building that supervised it that is the professional did not perform the professional duties well. You know you could just look at negligence in every situation that there is human interaction that you do not fall bel you're looking at for an injury. So if you have a case scenario and you want to the action on negligence you're looking out has he suffered any injury whether injury to the person to property mental injury economic loss you are looking out for an injury that has been suffered and that is recognized by law and um so you have so many scenarios regarding this negligence. Now let me mention the fact that as a course of as as a course of action with his own defined principle you look at the case of Dunu and Stevenson because until that case in 1932 they were peace milk actions trying to fit your action into a rit and in the previous uh introductory video to the sort of negligence if you've not watched that you can go and watch it we talked about how causes of action were you know brought before the courts in the past but um The case of Stevenson was able to provide us with a general framework, a principle by which we can determine whether there is a duty of care and talks about the fact that you must, you know, do not do those things that you can reasonably foresee would injure your neighbor and who is your neighbor. The people that can be affected by my heart, by my omissions, the things I'm doing right now, who are the people that can be affected? If I'm a medical doctor and I'm or I'm a surgeon or I'm a pharmacist or I'm an engineer, what are the people that can be affected by my professional duties that I'm performing? That would be the patient for instance for the medical doctor you know and you take care that you act like a reasonable and prudent professional towards those people. If you are a parent towards your child, you are a driver towards the other road users. We are saying that any actions that we undertake as human beings, you must put it into consideration that how would a reasonable and person behave in a way that you not injure your neighbor. Now this neighbor that we are talking about as found in Lord Eskin's um Lucas classical um u pronouncement is not necessarily a geographical neighbor could be a geographical neighbor for instance a driver and other road users the approximate in that context of geography it could also be a neighborhood in terms of um yeah other relationships that are not geographical for instance like I said a doctor and a patient you know it's because of the relationship between them that there's duty of care parent and child lecturer and and student that's based on proximity relationship that the duty of care arises um so we Stevenson is one case that as a law student as a lawyer that has that's practicing in this field you should be familiar with in fact I'll always tell students that one of the ways to know a fake lawyer is find out if if the person cannot mention and discuss the case of Dungo and Stevenson, you know that this person would not have studied thought you know so you should please read that case and the principle that he brought out rest on the fact that it made the clearation between thoughts and contract and was able to establish the fact that outside of contract there could be a duty of care where you have no relationship prior to that interaction with that defendant. the law could also fix still fix the duty of care on you. So um Steven talks about reasonable foreseeability. You should be careful you know in the actions that you can reasonably foresee. So it is important that the injury to the plaintiff must be reasonably foreseeable. If it's not reasonably foreseeable then there's no way you can have them in contemplation when you are doing what you are doing. Um you must hold this duty of care to the plaintiff. is not hold in the hair so to say that means that there must be that relationship that foreseeability. Now the duty of care that we're talking about can be established therefore first by the principle that we talk about now foreseeability of harm. You don't reasonably foresee harm to the um plaintiff. If if somebody is driving and you and that that person is over speeding, you can reasonably foresee that people that are using the road with him may be injured. It's only just common sense. If a surgeon is performing a surgery, it is only common sense to know that if he does not act reasonably well and act professionally, competently, he would cause injury to that patient on the operating table. That is the person that can be adversely affected by the actions of that soldier and that's how you situate it into every other life situation. So you talk about reasonably foreseeability of harm. If arm is reasonably foreseeable to the plaintiff then there is a duty of care then sometimes is not based strictly on possibility but on proximity you know relationship relationship if there's a relationship between the two of you and that's where some of those special duty of care situations arise that when we talk about liability for omissions okay when the law talks about the fact that there's no duty of affirmative action but you still de the has developed some special rules to go by omissions. When we talk about negligent misstatements and law talks about the fact that for you to sue somebody for statement, there must be some relationship between the two of you. You cannot just rely on any statement that you find in the here on social media. So you're looking at proximity relationship between the make of the statement and the person that is claiming to have acted on the statement. So you talk about So that's number two, proximity. Then you talk about um um where uh whether it is fair, just and reasonable to oppose a duty of care. So law of thought um also works on on policy. When you're talking about policy, you're talking about what um sometimes you know the law would look at the implications of a particular law on society. I may decide that for purposes of policy, he will not hold this person to be liable. And with regards to duty of care sometimes information whether there's a duty of care or not that comes into play to say oh there will be no duty of care and one example I used to give is when common law held for instance that uh a lawyer that is in court arguing a case in court who no duty of care to the client when you're practicing as a barista that was the position at common there has been some changes since then in different jurisdictions and the basis of that decision was that if a lawyer has to be answerable to a client every time they lose a case in court that would mean that every case that is in court anotheration will arise from it. Somebody would always win and somebody would always lose. So as a matter of policy and for other reasons too of the flood gates argument that we talk about that it will just multiply litigation. The courts have said that okay so in that context a lawyer should not have reduced should not be liable to the client for losing a case for the conduct of the case in court. But if the so aspect there was liability. So these are some of the things that will come up as we discuss this thought um later. So policy plays a key role. One other example that is quite interesting is a situation where we say okay road users you know when you are using the road as a driver as a cyclist as a motorist you know you owe a duty of care to other road users even and you must drive in a way to ensure that they are not injured by your actions or missions. But the courts have had to say that even though a driver holds a duty of care to other road users, even those who are in his vehicle that he's conveying in his vehicle where two people were armed robbers, a gang of robbers were coming from a robbery in incident and they drove recklessly to be able to escape arrest and one of the robbers was injured and brought a case to court. The court was not going to be used as an instrument for criminality. at you. So the court held that there's no duty of care in that kind of a context. So that's how policy comes into play. You weigh the fact of a case against the extent laws and see whether there's any conflict weigh upon what implication what message is sending to society. Are we encouraging for instance immorality? Are we encouraging crime? Are we encouraging floodgates of litigation? And because of some of these considerations, the courts would hold that there is no duty of care. Um so this um it's important for the context of determining um whether there's a duty of care. So when you're looking out for whether there's a duty of care, you can apply any of these rules and you be able to get at a reasonable answer. Finally, I would say that you must understand that negligence, the categories of negligence are not closed. Negligence actually is the most important to me thought that you can engage in because it protects various interests that we have recognized as being protectable under the law of thought. So the thought of negligence continues to evolve. The categories are never closed, you know, because it regulates the way we behave. And since we also graduate, we we develop the way we interact, you know, society is developing physically, technologically, in every way. That means that the way we interact has also changed and continues to evolve. Before we you can't even have a platform like this that you are transmitting a recording. But now all of us are transmitting. All of us are interacting you know with technology and therefore special duty of care situations will continue to arise beyond what we already know. But be that as it may there are some cases that are now establishing law that when you get to court you don't need to be looking for whether there's a duty of care or not. One of them that I've mentioned repeatedly is that the drivers owe a duty of care to other road users. So you can it is taken when you get to court that if you say claim a motorcraft accident you don't have to be proven that a driver holds a duty of care to the the other motorist it is taken it is already established that doctors owe a duty of care to their patients parents owe a duty of care to their children you know and those who are in parent for instance you have taken your children to the school at that point the children are in custody of the school the school owes their students the pills a duty of care so there are some established duty of care situations that are already known to law and have been noticed so to say and you don't need to prove it all over but when you have a fresh scenario emanating from maybe extant social behavior and relationships that have not been brought before the court you may have to establish through these principles of possibility of harm proximity fair just and reasonable policy to show that there is a duty of care. If you're able to um go overcome this um stage of the inquiry then you proceed to the next stage which will be talking about breach of duty. I'll see you at the next presentation. Don't forget to like, comment, share and subscribe to the channel.