Essay On Duty Of Care
Duty of care is the legal obligation that reasonable care must be taken to avoid acts with a reasonably foreseeable outcome of injuring another person.
The concept of ‘duty of care’ was first recognised in Donoghue v Stevenson [1932] AC 562 where it was established that a duty of care is created via proximity, or a relationship between the defendant and the plaintiff. This is known as the ‘neighbour principle’ , which relies on combination of proximity and a reasonably foreseeable risk of harm.
In Victoria, the Wrongs Act 1958 (Vic) (the ‘Act’) is used to determine and administer negligence claims and damages.
Section 48
The first component of a negligence claim is the alleged existence of a duty of care to the plaintiff …show more content…
According to Section 48(1) , a person is negligent in failing to reduce the risk of harm when the risk was foreseeable and significant and a reasonable person in the same situation would have taken precautions to limit that risk.
Section 48(2) determines whether a reasonable person would have taken precautions against the risk of harm by considering probability, seriousness, burden and social utility of the risk.
Section 48(3) provides that the risk must not be ‘far-fetched or fanciful’ and that it must be not be insignificant.
In theory, to successfully impose a duty of care, each of these must be achieved.
Inadequacy of Section 48
Despite these provisions, section 48 of the Act is merely a starting point in determining breach and alone is inadequate in helping to determine such duty.
Section 48 does not even contain ‘duty of care’ in its text.
To successfully implement a claim of negligence, the plaintiff must prove:
1. The defendant owed a duty of care.
2. The defendant breached this duty.
3. The plaintiff suffered damages as a result of the breach.
4. There was causation between the damage and the
The concept of ‘duty of care’ was first recognised in Donoghue v Stevenson [1932] AC 562 where it was established that a duty of care is created via proximity, or a relationship between the defendant and the plaintiff. This is known as the ‘neighbour principle’ , which relies on combination of proximity and a reasonably foreseeable risk of harm.
In Victoria, the Wrongs Act 1958 (Vic) (the ‘Act’) is used to determine and administer negligence claims and damages.
Section 48
The first component of a negligence claim is the alleged existence of a duty of care to the plaintiff …show more content…
According to Section 48(1) , a person is negligent in failing to reduce the risk of harm when the risk was foreseeable and significant and a reasonable person in the same situation would have taken precautions to limit that risk.
Section 48(2) determines whether a reasonable person would have taken precautions against the risk of harm by considering probability, seriousness, burden and social utility of the risk.
Section 48(3) provides that the risk must not be ‘far-fetched or fanciful’ and that it must be not be insignificant.
In theory, to successfully impose a duty of care, each of these must be achieved.
Inadequacy of Section 48
Despite these provisions, section 48 of the Act is merely a starting point in determining breach and alone is inadequate in helping to determine such duty.
Section 48 does not even contain ‘duty of care’ in its text.
To successfully implement a claim of negligence, the plaintiff must prove:
1. The defendant owed a duty of care.
2. The defendant breached this duty.
3. The plaintiff suffered damages as a result of the breach.
4. There was causation between the damage and the