Breach Of Duty Of Care: A Detailed Analysis

Question

Task: Draft a short note on the Breach of duty of care

Answer

Introduction
The provision of duty of care in criminal law is the provision that requires the abidance with the contract to provide the opposite party with reasonable care which could avoid any sort of harm to them. The major tool for negating the act of negligence among the partners would be implying the provisions of duty of care. In any case, which signifies the occurrence of the breach, the affected party would be empowered to impose the provisions of breach of duty of care on the opposite party by the breach of duty of care. The would-be no direct interaction between the engaged parties and the result for the breach of duty of care would only be attained through the legal procedures. It is by evolving the social contract into a much evolved and formal edition that the provisions for breach of duty of care have been derived out. Since the breach of duty of care could be effectively implied and justified eve by the common existing law, the separate section for it to be defined and demarcate would be an unnecessary effort.

Evolution of the ideology and provisions of duty of care
As per the common law, the parties are bound to perform the tasks and expectations mentioned in the signed piece of contract. It was observed in several product liability cases by the judges in the aftermath of the industrial revolution that the implementation of privity requirements was turning out detrimental for the customers. The concept of the general duty of care signifies the ideology where every factor would get affected because of the misconduct or efficiency of a single unit or party. The concept was ruled by judge Brett J first in the case of Heaven v Pender. The Suggestion of the judge Brett J was although rejected by his companion judges in the case the same judgment was being referred to in the MacPherson v Buick Motor Co. in the country of United States. The case was especially related to the issue of product liability and had taken the viewpoints of Brett J in the case of Heaven v Pender.

Scope of the case of duty of care
The ideology and the concept behind the topic of breach of duty of care are not that complex and could be understood by any layman. Although the contract traces down for the crystal clear requirements and guidelines for the delivery or the commencement of a certain task, the current situation of the progress would be much different from expected and could display a high chance of failure in attaining the pre-adjusted target. Gradually, the variation and the gap between the activities and expectations of both parties could get widened.

Let us take an instance where there the task of constructing a building is assigned to a construction company or an engineer. There would be a specific timeline in which the construction process is to be completed by following the suggested guidelines and quality parameters. The instance has a very high probability of generating altercation between the engaged parties and it was being pointed out in the case of Terline v. Neely held in the South Carolina Supreme Court. The observations in the same case were being later referred to as the case of Winnipeg Condominium Corporation v Bird Construction Co. held in the Supreme Court of Canada.

Responsibility
In the current scenario, the concept of general duty is well known to the popular mass and is being acknowledged by every entity. Though it should be noted that the instances in which there is an involvement of the provisions of duty of care, the legal procedures and interventions would be different from that of the jurisdiction of the common law. In the absence of the provisions for the breach of duty of care, the legal system has to blame every indulged person for the breach of any contract or conscience among the partners which is not practicable since it creates a lot of complications. In the absence of the breach of duty of care, there is a strong chance that of exploiting the contract demanding for the dedication for the infinite period with unconditional clauses. By using the breach of duty of care, the liability of the entered parties could be limited to a reasonable period. This could set the limits for the liabilities and requirements in a contract and hence would bring a great deal of transparency to the condition. The provisions of the breach of duty of care would bring trust in between the engaged parties.

Let us take the instance of England with respect to the topic of breach of duty of care. If considered the British background, it could be noted that the major legal intervention regarding the breach of duty of care was done in the case of Dickman v Caparo Industries plc. The court has laid down the guidelines in the related jurisdiction regarding the breach of duty of care that

• After the signing of the contract, an amiable and close reaction should be formulated between the partners.
• The act of harm should be expected by either of the parties entered a contract with each other.
• The imposed liability or requirements over the partners should be of the reasonable and fair parameter which could be justified by both the parties.

Similarly if taken the case of the country of the United States, each federal state has its jurisdiction which is legally laid down in the tenth amendment act. The legal system of the United States provides for certain tests that would ascertain the existence of the breach of duty of care. Let us look into some of the tests which are majorly used in the country of United States.

• Foreseeability test: This test is being majorly implied by the states of Massachusetts and Florida. It is in this test that provides the provision to understand whether the petitioner would have anticipated the harm from the opposite party or the guidelines mentioned in the contract. It was by the jurisdiction ruled out by the Supreme Court of California by judge David Eagleson that the significance of the predictability, steadiness, and reliability is much more in ascertaining the breach of duty of care. The petitioner should not be ignorant and should have the basic ability to foresee the upcoming risks while engaging in a contract or other bond. Recovering from a tragedy and damage would be very hard for the petitioner if he is ignorant and the whole could not be just endorsed on behalf of the defendant. 
• Multifactor test: The state of California had devised out a multifactor test by referring to the case of Fowler V Harper along with referring to the scholarly works of William Prosser and Fleming James Jr. in the respective field. By using this test the multifaceted and dynamic factors are juxtaposed and compared together whether the breach of duty of care had happened because of the negligence. Every citizen is being endowed with the duty to abstain from providing any harm to the others as per section 1714 mentioned in the California civil code. The implication and the ascertainment of the existence of the breach of duty of care should only be done if the context provides for the justification for the public policy factors mentioned in the Rowland v Christian case.

1. Predictability of risk or damage from behalf of the petitioner.
2. The level to which the petitioner has bearded the burnt of the damage happened.
3. The level of the relationship sustained in between the defender and the petitioner before the damage has impacted.
4. The moral background to which the act of the defendant is being viewed and analyzed.
5. The precautions and other actions were taken by the petitioner to avoid the damage in the future.
6. The extent to which the petitioner has faced the damage and the level to which the associate is liable for the consequences of the act of breach of duty of care.
7. Access to the insurance in case there is damage to the petitioner because of the act of the defender. The accurate implication of the breach of duty of care could only be done by analyzing the extent of insurance available to the petitioner.

Later to these guidelines, further amendments were in the year of 1997. The factor of the social background to which the defendant had made the harm causing conduct was added by this amendment.

In the current scenario, the guidelines put forward by the Rowland is considered to be the golden standard for deciding the breach of duty of care in any instance. These factors are also termed to be the Rowland factors and are widely accepted in the United States, especially in the state of California. The behavior that has the potential to cause substantial damage to the petitioner is investigated on the primary basis in the state of California. Only after comparing the multiple factors among each other the existence of the breach of duty of care is ascertained by the officials. Later in the course, many of the further states in the USA have implied the same decision of Rowland in its executive processes. The guidelines were further developed by other states of which the version of Tennessee is a much relevant one. The additional parameters for the evaluation are listed down in the below section.

• The background safety in the activity commenced by the defendant.
• The predictability or the probability of the damage done to the petitioner.
• The moral background on which the defendant has done the relevant act of damage.
• Has there any hidden benefit to the defendant because of the activity.
• Was there any other possible way to get away from the damage by the petitioner.
• The cost the petitioner may have to incur if he would have opted for an alternate option.
• The range of profit or loss he may have incurred by opting for the alternative method.
• Was the alternative method much riskier than that of the previous method?

As per the latest data obtained from the year 2011, the 43 states of the US have adopted the modified set of rules for the ascertainment for the breach of duty of care. The major milestone of the adoption of the California model for the breach of duty of care was when the Tennessee court had recommended to apply it.

Analyzing and measuring
To claim the breach of duty of care, the petitioner is required to prove the act of damage from behalf of the defendant. In the country of America, the above mention parameter is considered to be the second element of negligence. It is by keeping the performance of a reasonable person as the parameter to analyze the activity of the defendant. If taken the case of a medical practitioner like the doctor, the reasonable person with the same profession is taken as an ideal example rather than taking a layman person as a parameter for comparison. If the standard od the defendant is found to be significantly lower than that of the standards of the normal reasonable person. Though the condition should also be considered by the analyzing officials that even after the defendant takes all the possible measures to avoid damage to the petitioner, the plaintiff would end up being damaged by the related situations. If the defender has taken all the necessary precautions to avoid damage for the petitioner, then he would not be considered guilty under the provisions of breach of duty of care. The petitioner would not be provided with compensation if the defendant is found not guilty and the damage has caused even after the necessary precautions. Although if the strict liability is being implied instead of the act of negligence, then the plaintiff would be provided with the compensation even if the defendant ha taken all the required all the measure, though the damage has caused to the petitioner.

Illustrations
Let us have a detailed look at the instances where the ideology of the breach of duty of care would be implied on the second party for the proven disability or misconduct.

Product
It is the major area in which the provisions of the breach of duty of care are implied by either of the parties engaged in the contract. The generation of the concept of the general duty of care could be traced down to the ideology of product liability. The liability of providing the consumers with the duty of care is endowed with the manufacturer and if they fail to do it, they would be imposed with the penalties as mentioned in the legal terms of breach of duty of care.

Land
The ideology of the breach of duty of care also holds a lot of significance in the topic of land. The issues like trespassing into the premises, licensing, or sales would be covered under this topic. Though it should be noted that the provisions regarding the breach of duty of care concerning the cases of land were repealed by many states and its law jurisdiction. In the country of England, the respective law regarding this section was passed in 1957 that was termed as the Occupiers Liability Act. The case of Christian v Rowland also turned out to be a crucial point in this field in 1957. In the same case, the supreme court had laid down different dimensions to the ideology of the duty of care about the possession of the land. It was after referring to many controversial cases that a statute amending the existing situation has been implied in 1985. This statute has provided some relief to the trespassers of land from the unjustifiable sanctions and restrictions. The same opinion and standard were being referred to in the case of analysis of duty of care for Rowland in the high court of Colorado. Further legislative events have led to the formulation of the Colorado Premises Liability Act in the year of 1986. This act had exclusively made remedies to the incongruities which were prevailing in the previous versions of the legal acts. The issue of liability was well explained and mentioned in this case and brought the parameter of justifiability in the restrictions imposed. If taken the case of the Republic of Ireland the issue of the visitors or trespassers to the land owned by a secondary party was being mentioned and analyzed in the Occupier’s Liability Act of 1995. The trespassers who are visiting for the recreational purpose could be made liable for breach of duty of career respective to the subject of land possession.

Business
The ability, awareness, and indulgence of the manager while working in a business environment is being analyzed. The capacity to arrive at a relevant decision by keeping into account the regulations in the institute along with considering the supervisory functions. It is expected by the business norms that the managing officials should work in accordance with the proper indulgence of the intellectual resources along with the endorsement of good faith in his subordinates and the working environment. These parameters are being evaluated by the judicial bodies and it is on the secondary basis that the parameters with other characters taken for analysis.

Conclusion
In this report on Breach of duty of care, we have discussed much on the legal and ideological background of the negligence and duty of care. The basic terms regarding its evolution and practice have been discussed in this report on Breach of duty of care. A better foundation has been tried to lay down in the mind of the writer regarding the concept of breach of duty of care. It is made clear and evident that the law regarding the breach of duty of care applies to every common man and civilian. The law is relying on the ethical background on human behavior

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