View all legal library categories When considering whether a defendant in a torts case has breached his duty toward the plaintiff, the court asks several questions, including: Did the defendant have a duty of toward the plaintiff? If so, was it a duty of reasonable care, or was it based on professional liability, premises liability, or another type of relationship between the plaintiff and defendant?
Assess the likelihood and extent of the foreseeable harm. Assess the likelihood and extent of the foreseeable benefit. Look for ways to minimise the risk of harm without sacrificing the benefits of the activity.
Balance foreseeable harm against the benefit. Some of the questions that you can ask yourself in determining your duty of care, as a worker are: What rights exist here for the service user?
|Purpose of this policy||Directors should also schedule and be prepared to discuss and review of budget issues, executive compensation, legal compliance, and strategic direction. Failure to uphold the duty of care may result in legal action being brought against the board of directors by shareholders.|
|Current section||Negligence and Duty of Care Negligence Negligence in its legal sense means a failure in law to do what a reasonable person would have done in the circumstances. To establish liability a plaintiff must first establish that the defendant owed a duty of care towards the plaintiff.|
What rights are at risk of being compromised or abused through the action that I do or do not take? What rights would be upheld? Are some of these rights in conflict or competition with one another?
Can the different rights relevant to this situation all be upheld or must I make choices between them? If there is a conflict or tension between these rights then am I clear about why I am choosing to emphasise one rather than the other?
Whose values are influencing my judgement—mine or the clients? To what extent am I involving the service user in balancing up these issues? She wants to spend the day at the races, as this has always been her favourite past time.
She asks Karen, who works at the hostel, to help her call a taxi. Karen is not confident that Vera can cope with this outing safely and is afraid that Vera will get confused and disorientated at the races. She discusses her concerns with Vera who becomes quite annoyed with Karen, saying that it is her life, she is not a child and she has the right to make her own decisions and take her own risks.
Karen accepts what Vera has said and calls a taxi.
Should Karen have called the taxi? Type your response here Feedback Fulfilling duty of care responsibilities Fulfilling duty of care responsibilities involves ensuring that adequate care is taken to avoid injury. To do this, keep the following things in mind.
Foreseeable injury Regarding assessing a certain activity or situation for foreseeable injury to a client or others, keep in mind: You may have a client that wants to do something that, on quick reflection, seems dangerous such as a person with a disability abseilinghowever, when you look more closely at their capabilities and their awareness of the risk involved, with certain precautions it may be quite possible to minimise the risks with appropriate care.
Seriousness of the injury Regarding assessing the likelihood of a potentially serious injury to a client, keep in mind the potential seriousness of the injury, even where the likelihood of it occurring might seem quite remote. For example, a client who has a life-threatening allergy to eating shellfish needs to have care taken at all times, even if the chances of them eating shellfish are remote eg it is never on the menu at the group home.
The service should always be mindful that, in the rare event the client did come into contact with the food, their life would be at risk and thus take all precautions such as have adrenalin on the premises to reverse the affect of the allergy.
Values of workers In making an assessment of foreseeable risks and benefits of an activity for a client: For example, you have a client with a disability who wants to visit a prostitute. A worker could come up with all sorts of risk issues if they had a personal bias against payment for sex.
Doing what is reasonable to avoid injury In looking for ways to adjust activities or situations when necessary to minimise foreseeable harm, consider: Supporting people to confront risks safely To help balance foreseeable harm with benefits of an activity or situation, aim to empower clients to take control over and responsibility for the situations, including the risks, with which they are confronted.
For example, if a client wants to move out of home and he requires support for daily living, encourage them to identify the potential risks and develop strategies to overcome them.
Safeguarding others from injury Remember that in your assessment of potential harm occurring duty of care does extend to other consumers and members of the public.
For example, if you take a client who has challenging behaviours on an outing to the city, you must take precautions, with adequate supervision to ensure that no member of the public is harmed in any way.
Role of agency policy and procedure Agencies in the CSI should always ensure that there is a clearly written policy and procedure, which enables staff to understand and perform their duty of care.
Policy will vary according to the target group and agency context, but should include the following points: The following points are an example of what may be incorporated into a policy and procedure in relation to duty of care.What is BREACH OF DUTY?
In a general sense, any violation or omission of a legal or moral duty. More particularly, the neglect or failure to fulfill in a just and proper manner the duties of an office or fiduciary employment.
DUTY, BREACH OF FAITH, TONNAGE DUTY, BREACH OF CONTRACT, DUTY OF CARE, BREACH OF TRUST, BREACH . Breach of Duty of Care Introduction Once it is established that a duty of care is owed by the defendant to the plaintiff, a cause of action in negligence requires determination of whether there has been a breach of that duty of care.
General standard of care. For a defendant to be deemed negligent, he must have breached his duty of care towards the plaintiff. In order to be deemed as breaching the duty of care, his actions must be proven to fall below the standard of care likely to be taken by the reasonable man.
What is “breach of duty”? A breach of duty occurs when one person or company has a duty of care toward another person or company, but fails to live up to that standard. A person may be liable for negligence in a personal injury case if his breach of duty caused another person’s injuries.
Breach of Duty It's not enough for a plaintiff to prove that the defendant owed him or her or a duty; the plaintiff must also prove that the defendant breached his or duty to the plaintiff.
A defendant breaches such a duty by failing to . ⇒ Although the test for breach of duty of care takes into account 'the defendant's circumstances', this really brings into play issues such as whether the defendant was acting in an emergency (as mentioned above).
However, the court will generally not take into account the defendant's personal characteristics.