Duty of Care in Tort Law

This article discusses the concept of duty of care in tort law and its implications through two case studies. The first case involves a dentist's negligence causing harm to a patient, while the second case focuses on a social activist's failure to ensure the safety of participants in an event. The article explores the criteria for determining breaches of duty of care and the consequences of such breaches.

Tort Law

Table of Contents
INTRODUCTION...........................................................................................................................3
MAIN BODY..................................................................................................................................3
CASE A.......................................................................................................................................3
Whether Morgan has breached her Duty of care.........................................................................4
CASE B.......................................................................................................................................5
Breach of Duty of Care................................................................................................................6
CONCLUSION................................................................................................................................7
REFERENCES................................................................................................................................9

INTRODUCTION
Tort law is a law jurisdiction, is a civil wrong which causes claimant loss and suffer harm
and this result in legal responsibility of the person who causes the harm to claimant. This law
includes intentional infliction of distress, negligence, financial losses, invasion of privacy etc.
This report will include discussion over two cases one in which negligence of dentist causes
suffering harm to patient. Another case includes a activist who fails to perform her duties
properly and become negligent in her duty of care and this is the reason that some people
become ill and suffer because of her carelessness.
MAIN BODY
CASE A
This case includes Cuthbert who has a terrible toothache. She consults Morgan who is a
dentist. While examining Cuthbert, Morgan observes a small cavity and does not carry out an X-
ray in order to avoid her patient to exposing to radiation (Morris, Chawla and Francis, 2019).
Morgan fills the cavity on the spot but despite feeling the tooth Cuthbert continues to feel pain.
Cuthbert considers it normal in beginning but after weeks of suffering pain she consults another
doctor. That another dentist performs X-ray and in this examination discovers an infection in the
tooth in which was filled by Morgan because of observing cavity and the treatment for infection
root canal treatment was required.
After this Cuthbert claims damage of negligence against Morgan and Morgan also
accepts the duty of care in negligence because it was Morgan’s responsibility to check and
diagnose the accurate reason for the toothache of the Cuthbert which was infection and Cuthbert
considered it a cavity. Regarding this situation expert dentist suggest that to the patient because
of correct diagnosis can be justified by the small dose of radiance. This is also right because
correct diagnosis aid in right and accurate treatment of the patient. But in this situation minority
of dentist has different in case of Cuthbert X-ray was not required because effect of radiation
because of X-ray accumulates from multiple sources after time.

Whether Morgan has breached her Duty of care
Duty of care is a legal obligation which is imposed on individual requiring adherence to
standard care while performing their duty that could foreseeably harm others. The above
discussion over the situation of Morgan clearly states that Morgan has breached her duty of care
(Plunkett, 2018). Duty of care is an implicit responsibility which required to be followed and
considered while a individual is involve into an act which might cause harm to another if they
are do not followed adhere to duty of care. Morgan was in the act of treating Cuthbert and in this
situation it was responsibility of Morgan to take all the measures through which she can correctly
diagnose the problem of Cuthbert and give her required treatment. This clearly states that
Morgan conducted her act with negligence and which caused suffering to Cuthbert. Hence,
Morgan breached her duty of care.
The Tort law is a law which is part of civil law rather than criminal law. Criminal law requires
that proof to prove whether individual is guilty or not is proof which is beyond reasonable doubt
and clearly states that one has involved in a crime. Unlike this in civil law standards of proof is
balance of probabilities. Here probability is that if Morgan would have properly diagnosed the
toothache of Cuthbert then she would have found the infection on the right time and this would
have saved Cuthbert from all the sufferings of pain she continued to have after treatment.
One of the probability here also suggest that Morgan has breached her duty of care as she treated
cavity instead of infection and this could have resulted in some type of reverse effects and this
would have probably cause any other serious damage to Cuthbert.
The negligence by Morgan also says that Morgan has breached her duty of care (Momodu and
Oseni, 2019). This is because to found a doctor negligent one is required to prove that doctor
owed duty of care to the plantiff and in this case Morgan owed a duty of care to Cuthbert.
Another thing to prove in this is that doctor was in breach of appropriate standard of care
imposed by law. In case of Morgan she was required to properly diagnose the problem of
Cuthbert so that she can give her appropriate and required treatment. Morgan did not diagnosed
properly and this states that she breached duty of care.
One more criteria to meet whether duty of care has been breached or not is that breach of duty of
care caused the patient harm which merit for compensation (Moreau, 2018). In this case Morgan

meets all these criteria because her negligence caused Cuthbert to suffer pain for longer time
which would have ended right on the time if Morgan would have diagnosed properly.
All the criteria which are required to determine whether Morgan has breached the duty of
care has met and conclusion is that Morgan could have been more careful in her diagnose and
because she showed negligence it resulted in suffering for Cuthbert and this is why she has
breached the duty of care.
As she is required to follow the duty of doctor and in this case she owes duty to her
patient and doctors are not bound by law and regulation to whom they should treat but in this
case Cuthbert consulted to Morgan and she did followed her duty of doctor and gave her
treatment which she thought was right (Foley and Christensen, 2016). In this case it is clear that
there was a relationship of patient and doctor hence from all the perspectives Morgan has
breached duty of care in context of duty as a doctor and which affected Cuthbert and she has to
suffer because of pain.
CASE B
This case is about 14 year old environmental activist Tonke, in order to raise awareness
about water-pollution she organised an open-water swimming event at Malchance Lake. In order
to organise event she advertised about the event on social media and various environmental
websites. The event was lightly organised and advertisements by Tonke simple instruct would be
participants to come to lake and start swimming at 7.00am on Saturday Morning. Quality of
water at lake was tested by government earlier the week and this was sufficient for swimming.
But heavy rains fall on Thursday before the event was about to organise on Saturday. The rains
washed contaminated material from local farms into lake (Fulbrook, 2017). This contaminated
material affected the quality of the water at lake and this was not suitable for swimming because
this increased bacteria level of lake. On Friday one of the neighbour of Tonke warns her that
bacteria level of the lake is probably high and this is why it is not safe for the swimming event.
Tonke did not foreseen the possibility of sudden rains which might cause deterioration in the
quality of water in lake and has not organised any official channel of communication with would
be participants of the event. She posted a notice cancelling the event on social media sites but
many of the participants did not saw the notice and began swimming at lake at 7.00 am on
Saturday.

Breach of Duty of Care
Organising a social event is a big responsibility and person organising this requires to pay
attention to several aspects in order to fulfil their duty of care.
Duty of care is also considered as formalisation of social contract, this is the implicit
responsibility which is held by individuals towards others within society (Gudmundsson, 2018).
This clarifies that Tonke owed a duty of care for people who were participants of the event
which was called by her.
Some of the criteria which determines whether Tonke owes a duty of care are;
Harm must be reasonably foreseeable, result of defendant’s conduct
In this case rain falls are general possibility and its results were also predictable.
Organising a social event requires that Tonke should have properly identified the possibility of
rain falls and such things are possible through weather forecast. Later it was responsibility of
Tonke to inform participants that such event can be the reason for cancelation of the event. This
criteria meets in case of Tonke and she did not followed the criteria suggests that she breached
duty of care.
A relationship of proximity must exist between the defendant and the claimant
This is another criterion and on the basis of this criterion Tonke owes a duty of care for
those who got ill after swimming in the lake (Chan, 2016). This is because they were present at
the lake on the call of Tonke. This builds and creates a relationship between participants and
Tonke and she becomes responsible for duty of care.
It must be fair, just and reasonable to impose liability
Tonke was about to organise an event and this suggest that she should have followed duty
of care and now when she has breached her duty of care she can be imposed liability on.
Above discussion involved whether Tonke breached her duty of care and the criteria which has
been set out suggests that she owed a duty of care to those who has been harmed and got ill after
swimming at the lake. Below are some of the ways in which Tonke has breached her duty of
care.

Tonke has breached her duty of care because of as firstly when she decided to organise
the event she should has considered all the possibilities which may affect organisation of the
event. Rain falls are a big possibility and she should have considered this before organising event
which may be affected because of rain falls (Goldberg, 2018). Person who owes duty of care
requires foreseeing all the possibilities which are likely to affect their responsibility. First breach
of duty of care is in this.
Limited information for the participants was another way in which Tonke breached duty of care
because only information given to them was that they are required to come at 7.00 am at lake and
there was no information but this. Participants were required to given all the required
information about possibilities due to which event might be cancelled.
Tonke owes a duty of care and this is why she has also breached her duty of care in a way that
she did not established any official channel of communication. This is a important breach of duty
as it was not only a mere information gioving about water pollution and participants were not
doing it on their own. Participants were participating though by their choice but because event
was organised by Tonke. In such case it is responsibility of the Tonke to establish a official
channel of communication through which she can communicate to the participants and
participants also can communicate to Tonke. This is important for uncontrollable uncertainties
which could possibly affect organisation of event. These are important as it was social event and
any uncertainty can affect many people at once because of negligence of one party.
Tonke also should have posted the notice of cancelling the event on the very day it rains fall
because this would have increased possibility of people who saw the notification on social media
(Cassel, 2016). Tonke only posted notification on social media she should have posted this on
websites as well to increase its visibility to participants.
CONCLUSION
The above discussion of the two cases was about duty of care. Duty of care which is a
regulation and part of the civil law means duty to take reasonable care in order to avoid any type
of harm to other party. In this one case was about a dentist whose negligence resulted in

suffering of her patient for several weeks which could have ended at the time she came to visit
her. Negligence of dentist made her patient suffer for several weeks. Another case in this is about
duty of care of a social activist whose negligence caused illness to many participants who came
to took part in the event which was organised by her.

REFERENCES
Books and Journals
Cassel, D., 2016. Outlining the case for a common law duty of care of business to exercise
human rights due diligence. Business and Human Rights Journal. 1(2). pp.179-202.
Chan, G.K.Y., 2016. Finding common law duty of care from statutory duties: All within the
Anns framework. Tort Law Review. 24(1). p.14.
Foley, M. and Christensen, M., 2016. Negligence and the Duty of Care: A Case Study
Discussion. Singapore Nursing Journal. 43(1).
Fulbrook, J., 2017. Outdoor activities, negligence and the law. Routledge.
Goldberg, J.C., 2018. The Fiduciary Duty of Care.
Gudmundsson, A., 2018. Human Rights Due Diligence and the Duty of Care in Tort Law.
Momodu, D. and Oseni, T.I.A., 2019. Medical Duty of Care: A Medico-Legal Analysis of
Medical Negligence in Nigeria. American International Journal of Contemporary
Research. 9(1).
Moreau, S.J., 2018. Regulatory Negligence: Recent Update On and Analysis of" The Duty Of
Care". Canadian Journal of Administrative Law & Practice. 31(2). pp.139-175.
Morris, C., Chawla, G. and Francis, T., 2019. Clinical negligence: duty and breach. British
dental journal. 226(9). pp.647-648.
Plunkett, J., 2018. The Duty of Care in Negligence. Bloomsbury Publishing.