We have all heard the phrase “Duty of Care” which applies to much of what we do on a daily basis. Every law student learns the origins of the concept of duty of care as coming from a case in the United Kingdom in the 1930’s, where a woman by the name of Mrs Donoghue who attended a café and consumed a bottle of ginger beer which had decomposed snails in it and which made her sick. The ginger beer was purchased by Mrs Donoghue’s friend and as such, there was no contract between Mrs Donoghue and the café owner. If there had been a contract (which would have arisen had Mrs Donoghue actually purchased the item) then she would have been able to sue for breach of contract. Mrs Donoghue commenced a court action against the manufacturer of
the ginger beer, Mr David Stevenson. The case that resulted is a land mark case and is one of the corner stones of the common law applied in Australia. The principles that came from the case Donoghue v Stevenson are:-
- Negligence is a distinct and independent right of action;
- To be able to sue for negligence you do not have to have a contract;
- A manufacturer of a product owes a duty of care to the ultimate consumer to take reasonable care in the preparation of the product;
- You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
Since 1932, the Courts have been overflowing with people claiming breach of a duty of care. For example, a Council might be sued for failing to put up signs warning of pending dangers or a home owner where a trespasser might trip over an object left in an awkward place in their home. If you research “negligence” or “duty of care” you will be unlikely to find much by way of applicable legislation. This is an area of law that has developed over time by decisions made by judges hearing actions based on common law rather than legislation.
Historically, once it is shown there has been a breach of care, then damages will be awarded to the injured party. In Australia, damages tend to be awarded only to compensate the injured party for their actual financial loss. The Courts in the Unites States often take an approach which involves punitive damages or damages which are intended to penalise a defendant. Whilst such damages exist in Australia it is quite unusual for them to be awarded.
The level of the duty of care might fluctuate depending upon the person with whom you are dealing. For example, a real estate agent might owe a higher duty of care if dealing with a purchaser who is inexperienced in real estate as opposed to dealing with an experienced property developer. An extremely high duty of care would be owed to children generally because of their limited ability to care for themselves. The loss that is suffered by the injured person must be foreseeable. As society develops the concept of foreseeability is developed by our judges in line with community expectations. A good example might be what has happened in recent years with the “one punch can kill” campaign. At one stage, it might have not been reasonably foreseeable that a single punch could kill a person. But given the events of the last couple of years it is now more clear that a single punch can kill a person. As such, death as consequence of hitting someone in a drunken fight outside of a nightclub would now be considered to be foreseeable as opposed to say 20 years ago.
We all owe various duties of care to people around us. The lawyers at Macrossan & Amiet owe a duty of care to our clients. Teachers owe a duty of care to their pupils and doctors owe a duty of care to their patients. Road users owe a duty of care to other road users and pedestrians. Supermarkets owe a duty of care to their customers and as such, need to ensure that the floor is not slippery or warnings need to be given about the potential danger of a slippery floor. The next time that you are walking in the supermarket and you see a sign that warns you that the floor is slippery then, you might take the time to think of the Scottish woman by the name of Donoghue who took on the manufacturer of a ginger beer product all the way to the House of Lords. This case led to the law of negligence and the concept of duty of care which now today impacts significantly on almost everything that we do. In many respects, the law can be largely irrelevant, boring and tedious but sometimes the law can be interesting and very relevant as in the case of duty of care and negligence.
