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(PDF) The Standard of Care: Legal History and Definitions

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Added on  2021-04-22

(PDF) The Standard of Care: Legal History and Definitions

   Added on 2021-04-22

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The Historical Developments of Duty of CareThe duty of care refers to a legal obligation which is imposed on every individualrequiring adherence to a standard reasonable care while performing any acts that couldforeseeably fail to protect. For example, the employer is responsible for his employees’ well-being or a doctor owns duty of care to his patients by treating and advising them. A failure totake such care can make them be reasonably liable to pay damages to a party who was injured orsuffers loss. The duty of care cases was not illustrated fact before the 20th century. A claimant had nooverall appreciation of each kind of consequence. The first case of a duty of care to one’sneighbor was the Donoghue vs. Stevenson. The waiter served Ms. Donoghue a bottle of gingerbeer with a dead snail inside the bottle and she drank it. This case has been referred to as paisleysnail case. The problem at that time was who Ms. Donoghue could sue. Donoghue could not suethe owner of the café who supplied her the drink. This is because she had not contacted him asher friend brought her the drink. She could only sue the manufacturer of her drink, Mr. Stevenson who owns a duty of careto the consumer. Lord Atkin LJ stated that ''you must take reasonable care to avoid acts oromissions which you can reasonably foresee would likely to injure your neighbor.” The neighbortest can be broken down into two main categories: (i) reasonable foresight of harm; and (ii)proximity. Before the Paisley snail case, liability to claim for physical injury was non-foreseeable. However, Ms. Donoghue developed some psychological condition by drinking anoxious substance classified in non-pecuniary losses in tort. At this stage, Is Mr. Donoghueentitled to compensation?
(PDF) The Standard of Care: Legal History and Definitions_1
In the case of Ann vs. Merton Borough Council, Lord Wilberforce gave the opportunity toexpand the duty of care in the tort of negligence. This was done by determining whether thealleged wrongdoer and the victim had a reasonable proximity relationship. In the case of JuniorBooks vs. Veitchi, reasonable proximity relationship between the parties to own duty of care wasproved. Thus, the claimant would be entitled to compensation. However, in some cases, the dutyof care is not approved. In the case of Murphy vs. Brentwood Borough Council, the duty of care was disapprovedIt was stated that the absence of physical injury cannot amount to liability. Therefore, inMcloughlin vs. O'Brien, Lord Wilberforce concluded that there is a fundamental differencebetween the parties as a result of causing psychiatric injury to the claimant. The Court mustdetermine whether a party is affected by whom he loved and whether a party is in favor of beingbeneficiary. Caparo vs. Dickman test is concerned with the professional negligence. This test hasgiven way to a three-stage test which looks at questions of foreseeability, proximity, justice,fairness, and reasonableness. The Caparo test is only satisfied where a victim is considered tohave a reasonable proximity to a professional negligence action. The Caparo test helps limit theclaimant engaged in a professional negligence action. The Alcock test/criteria of recoverability for the secondary victims of the psychiatricdamage remain challenging to the application in practice. Courts have since been stretching thistest in sympathy with the claimants. Sometimes the Court ignores the test in some cases. Thus,there is incongruous alongside unpredictable outcomes. For one to qualify as secondary victim,the claimant has to: (a) have a relationship of affection and love with the primary victim; (b)
(PDF) The Standard of Care: Legal History and Definitions_2

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