Accident Compensation Lawyers: Personal Injury and Duty of Care

May 22, 2010
Gary Lilienthal

Personal Injury Claims and the Duty of Care - Wikimedia Commons

The first of the three key elements of the tort of negligence is duty of care. For a court to proceed, it must first determine if D owed P a duty of care.

The tort of negligence is an outcome of the old actions on the case for indirect damages. As such, negligence is necessarily comprised of specific elements. Those elements are as follows:

Duty of Care;
Breach of Duty; and,
Foreseeable Damages.

Personal Injury Claims and the Duty of Care

Each of the three elements of the tort of negligence must be proved on the balance of probabilities before the Court can find the defendant liable in negligence. Although not current law, guidance as to whether or not the defendant's conduct evinced a duty of care is to be obtained from the famous 1932 case of Donoghue v Stevenson [1932] AC 562. In that case, Lord Atkin read his famous obiter dicta to the House of Lords, (later adopted as rationes decidendi in High Court of Australia cases), the words of his Lordship being partially extracted as follows . . .

. . . there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. ...The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question . . . a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with knowledge that the absence of reasonable care in the preparation or putting up of products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.

The Two Key Points for Personal Injury Claims

The following two tests must be satisfied before the defendant can be said to have owed a duty of care to the plaintiff.

The wordage "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour" is called the Reasonable Foreseeability of Risk Test.
The wordage "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question" is called the Neighbor Test.

Injury Attorneys Applying the Neighbor Test and the Reasonable Foreseeability of Risk Test

Before a duty of care can be established, the personal injury lawyer must determine whether or not the defendant is a "neighbour" of the plaintiff, as the word is used in its legal sense. The test means that when one's actions or omissions are being considered, one must turn one's mind to the range of people who might reasonably be considered to be affected by the consequences of the act or omission being considered. Without so turning one's mind, one acts without the level of care demanded by public policy and the law.

If the Injury lawyer can establish that the plaintiff was a neighbour of the defendant, then it must be established whether the injury could have been foreseen. This raises the issue of whether the defendant could, as a reasonable and prudent person, could possibly have foreseen the tortious consequences of his/her acts or omissions.

Accident Injury: Considering Who Owed Duty of Care

In Donoghue v Stevenson [1932] AC 562, the plaintiff was enjoying a ginger beer when the waiter topped up her glass. A partially decomposed nail came out of the bottle into her glass and she suffered shock and gastrointestinal illness. She sued the manufacturers of the ginger beer in negligence. The Court had to consider who should be the proper defendant, the restaurateur or the manufacturer of the ginger beer. In the end, the substantive matter of negligence was settled out of Court.