PART_A_DUTY_OF_CARE - ELEMENT ONE DUTY OF CARE When is a...

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ELEMENT ONE: DUTY OF CARE When is a duty of care owed? Should a duty of care be owed in this situation? An obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct towards another. 1. The Defendant was under a duty of care to exercise reasonable care and skill because his or her conduct involved a foreseeable risk of injury or harm to others 2. The P was within the class of persons (or was a person to whom that duty was owec. THREE SCENARIOS: (1) Where it is settled law that a duty of care exists A driver’s duty or care to other road users and pedestrians Chapman v Hearse, Cook v Cook, Bourhill v Young that being the standard of a reasonably competent and experienced driver Manufacturer owes a duty to ultimate consumers of their product Donoghue v Stevenson A teacher owes a duty of care to their pupils Doctor and patient Rogers & Whitaker, this can be extended to a nurse and a patient (2) Where it is settled law that no duty of care exists There are some situations that do not give rise to a duty of the court feels that public interests are more important:
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Barristers : Barristers do not owe a duty of care to clients for work done in court ( D’orta Eicheneister v Victorian Legal Aid ). This is decided on the basis of finality- if a barrister can be sued for negligence, the case can be reheard, which would undermine the judicial system. This immunity extends to work done out of court, as long as the work done is so closely connected with the conduct of a case in court that it can fairly be said to effect the way the case is conducted in court. It will not extend to things such as wills, which have no bearing on court cases. Armed Forces : No duty will arise out of actions taken by the armed forces where those actions are taken out in the pursuit of activity against the enemy ( Shaw, Smith and Albion v Commonwealth- Ship collided with civilian craft; held it must be in active duty against the enemy ). So, even if it is wartime, a duty can be found if the activity was not against the enemy. However, this case was decided in wartime, so perhaps the case would be decided differently today- particularly in the case of humanitarian missions. Parents to protect children: There is no duty for a parent to take action to protect their children ( Robertson v Swincer ). This is for three reasons: 1. There are no clear standards of what constitutes sufficient parental supervision 2. If there was such a duty, it would apply at all times the child is with the parent, and even the most prudent and alert parent would inevitably breach the duty. 3. If there was such a duty for supervisors, friends and relatives would be discouraged from volunteering to supervise the children ( Robertson v Swincer ).
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