Concept of Duty of care

 CONCEPT OF DUTY OF CARE

In ordinary usage, the word ‘negligence’ indicates unimportant carelessness. In legal sense it implies disappointment to work out standard of care which the practitioner as a sensible man ought to have worked out within the circumstances. In common, there's a legitimate duty to require care when it was sensibly predictable that failure to do so was likely to cause harm. Negligence could be a mode in which numerous sorts of hurts may be caused by not taking such satisfactory safety measures. Negligence occurs when one fails to take reasonable care to avoid causing damage to another person. It applies to both individuals and businesses. There are several factors that need to be satisfied for an individual or a company to successfully sue for negligence. These are: Duty of care; Breach of duty; Causation; and Damage

Establishing a duty of care for negligence: 

A duty of care makes an individual dependable for taking sensible care to maintain a strategic distance from hurt being caused to another. It exists due to the characteristics of the relationship between the parties. It emerges due to the nature of the parties’ relationship. For illustration, on the off chance that one party features a significant degree of control and/or dependence over the activities of another, an obligation of care may exist. In this occasion the party with more noteworthy control includes an obligation to require sensible care with their activities so that no hurt is caused to the dependent party. Cases incorporate an instructor and an understudy, a lawful proficient and the client and a specialist and quiet relationship. There are other common connections which grant rise an obligation of care. These incorporate the obligation owed by a driver to other drivers on the street.

Standard of care and breach of duty:

If an individual owes a duty of care to another, a court will decide precisely what obligations are owed. For case, a specialist or a bookkeeper would be held to the standard of specialists or bookkeepers and what is broadly acknowledged as competent proficient practice. In other occurrences, the standard of care is what a ‘reasonable person’ would do within the circumstances to guarantee the plausibility of hurt is limited. It makes a difference to adjust the rights of the parties by considering the level of care that's suitable between the parties. In the event that the standard of care isn't met, at that point the individual has acted in breach of their obligation owed to the other individual.

Damages and causation: 

For an individual to be able to sue in negligence, harm as a result of the other person’s activities must be appeared. Hurt caused by carelessness might be physical and/or mental. The onus is on the offended party to demonstrate hurt which the defendant’s breach of obligation has caused the hurt. Advance, there should not to have been an interceding occasion. The court will inquire: would the individual have endured hurt ‘but for’ the activities of the other individual.

In Grant V Australian knitting Mills Ltd, the plaintiff purchased two sets of woollen underwear from a retailer and contacted a skin disease by wearing an underwear. The woollen underwear contained an excess of sulphates which the manufacturers negligently failed to remove while washing them. The manufacturers were held liable as they failed to perform their duty to take care. Again in another case of Donoghue v Stevenson (1932), this case carried the thought advance and extended the scope of duty saying that the obligation so raised expands to your neighbour. Clarifying so as to who is my neighbour Lord ATKIN said that the reply must be “the people who are so closely and straightforwardly influenced by my act that I should sensibly to have them in consideration as being so influenced when I am coordinating my intellect to the acts or exclusions which are called in question”. 

In an Indian case of Municipal Corporation of Delhi V. Subhagwanti, a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of persons. The structure was 80 years old whereas its normal life was 40-45 years. The Municipal Corporation of Delhi having the control of the structure failed to take care and was therefore, liable. Similarly in Municipal Corporation of Delhi V Sushila devi, a person passing by the road died because of fall of branch of a tree standing on the road, on his head. The Municipal Corporation was held liable for negligence as there was a duty of care. 

As talking about the limits, following defences can be taken:

1. Contributory negligence: It was the Common law rule that anybody who by his possess negligence contributed to the damage of which he complains cannot keep up an activity against another in regard of it. Since, he will be considered in law to be creator of his wrong. In Butterfield v. Forrester, (1809), the litigant had put a shaft over an open lane in Derby, which he had no right to do. The offended party was riding that way at 8’O clock within the evening in Eminent, when sunset was coming on, but the hindrance was still obvious from a remove of 100 yards, he was riding brutally, came against the shaft and fell with the horse. It was held that the offended party might not claim harms as he was too careless.

2. Vis Major ( Act of god): It is such a direct, savage, sudden and overwhelming act of nature as may not, by any sum of human premonition have been anticipated or on the off chance that predicted, might not by any sum of human care and expertise, have been stood up to. Such as, storm, exceptional drop of rain, exceptional tall tide, soil tremor etc.  In Nichols v. Marsland, (1875), the respondent had an arrangement of counterfeit lakes on his arrive within the development or support of which there had been no carelessness. Owing to an uncommon overwhelming rain, a few of the supplies burst and carried absent four nation bridges. It was held that, the respondent was not obligated as the water gotten away by the act of God.

3. In evitable accident: Inevitable accident too works as a resistance of negligence. An inevitable accident is that which seem not conceivably, be avoided by the work out of standard care, caution and expertise. It implies mischance physically unavoidable. In Brown v. Kendal, (1859), the plaintiff’s and defendant’s pooches were battling, whereas the litigant was attempting to partition them, he incidentally hit the offended party in his eye who was standing adjacent. The damage to the offended party was held to be result of unavoidable mischance and the respondent was not at risk.

In Conclusion: amid the above mentioned statements and precedents, we can conclude that duty of care is owed to a certain extent, one cannot be held liable for assuming him to perform his duty of care going out of his/her way to help. The harm which occurred must be a reasonable foreseeable result of the defendant's conduct