Duty of Care (What Is It And What Are Its Legal Implications)

What is duty of care?

What are some examples of the standard of care?

What happens if you breach your legal duty of due care?

We will look at what is duty of care, its legal definition, how it is evaluated in law, who is responsible for the duty of care, what happens if the duty is breached, examples and more.

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What is duty of care

The duty of care is a legal obligation requiring that a person observe a standard of reasonable care when acting or engaging in conduct that could potentially harm others.

In other words, we must live and act in society in such a way that we do not cause harm to others.

If we do something knowing that it is likely that we may cause harm to another, then the law will hold us liable for the harm we caused.

In some situations, individuals and businesses have the duty of care responsibilities when interacting with one another.

We are free to choose how to act, how to behave or what decisions to make, but our freedom is limited by the harm we may cause to others.

For example:

A company has a duty of care to customers when manufacturing a product.
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A driver has a duty of care to ensure that the passengers in the car are safe
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A doctor has a duty to care to ensure that its patients are safe and receive proper treatment
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The standard duty of care cannot be defined in one hard rule.

Considering there are so many possible interactions in society with so many different actors in society, the duty of care may vary depending on the circumstances, individuals involved, the nature of the conduct and so on.

If a person breaches his or her duty of care can be held liable for the damages caused to the other.

Typically, in a negligence lawsuit, the negligence duty of due care is one of the elements to prove to successfully be awarded compensatory damages.

Duty of care definition

So what is the duty of care legal definition?

According to Law.com, duty of care is defined as:

A requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. 
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What is notable with this definition of duty of care is that the duty of reasonable care is a legal requirement that a person acts with caution and prudence as would a “reasonable person” in a similar situation.

Duty of care law

Duty of care meaning in law

The duty of care is when the law imposes that a person, corporation, organization or entity acts in such a way as to avoid causing foreseeable harm to others.

The common law duty of care generally requires:

  • A person considers the potential harm to others when acting a certain way
  • A person considers the magnitude of the foreseeable harm
  • Assess whether alternative options are available resulting in a lower risk to cause harm
  • Take reasonable precaution and steps to mitigate harm to others

The duty of care doctrine has evolved in different ways in various common law jurisdictions.

However, overall, the duty of care principle requires that each person or corporation be accountable for their actions, omissions and conduct when there was a foreseen risk of damage to others.

Duty of care tort 

In tort law, the duty of care represents a central notion in assessing a person’s liability when his or her actions harm another or cause injuries.

In a duty of care negligence lawsuit, the first element to prove is the existence of the defendant’s duty of care.

If the plaintiff can demonstrate that, in a particular situation, the defendant had a duty of care to the plaintiff, the court can then evaluate whether or not the defendant breached the said duty.

Duty of care business law

In business law, there are many situations where corporations, directors and officers may have a duty of care.

For instance, corporations have a duty of care towards their employees and customers.

Company directors and officers have a duty of care (fiduciary duty) towards the company stakeholders such as protecting the interests of the shareholders, making business decisions in the best interest of the corporation and so on.

To adequately evaluate the decisions of directors and officers, the courts have adopted the business judgment rule providing for the evaluation standard of business decisions.

Generally, the courts will not interfere with business decisions when they were made in good faith, with prudence, diligence, based on a rational judgment and without conflict of interest.

Duty of care levels in tort law

A person’s conduct and behaviour can be categorized into four duty of care levels or categories:

  • The duty to refrain from causing injury to another intentionally
  • The duty not to act in a negligent way (resulting in foreseeable risk of harm to others) regardless if there was no intention to cause injury to another 
  • The duty not to act in a reckless manner where recklessness is to act in disregard to the harm or safety of others
  • Strict liability which is when the law imposes a duty on someone for injuries caused regardless of the fact that the behaviour was negligent or not

Limit to the duty of care

On the one hand, the law imposes that we exercise prudence and diligence when we act or omit to act.

However, the general duty of care principle cannot require that every person be fully held liable for the problems or misery of others.

What is the limit to the duty of care?

Every jurisdiction defines its own standards or rules to determine in what situations a person could have a duty to care.

In some jurisdictions like England, the courts will apply the duty of care when:

  • The court had previously concluded that in an analogous matter the duty of care existed (based on precedent)
  • If no precedents can be found, the courts will perform the “reasonable person test” where they would consider the act, the harm, the foreseeability of the harm, the causality between the act and the harm and the fairness in imposing liability.

In Australia, the court will consider factors such as:

  • Can the duty of care represent an indeterminate liability for a person
  • Would the duty impose an unreasonable burden on the person
  • The relative power of the parties or vulnerability of the parties
  • The individual’s degree of knowledge and sophistication to understand the risk

In the United States, some states follow a “foreseeability test” and others a “multi-factor test”.

Evaluation of duty of care

Let’s look at how the U.S. courts tend to evaluate the duty of care.

Foreseeability test

The foreseeability test evaluates whether the damages caused by a person or corporation were predictable by a reasonable person in the same circumstances.

The sole evaluation factor under the “foreseeability test” is to determine the foreseeability of the harm caused.

For instance, Florida and Massachusetts follow the foreseeability test.

Multi-factor test

Another evaluation test is the “multi-factor test”.

The multi-factor test considers different factors and weighs one against the other to draw a conclusion on a person’s legal duty of care.

The factors may vary from one multi-factor state to another but the following can give you a general sense:

  • Foreseeability of the potential harm
  • The magnitude of the injury
  • The social importance of the conduct
  • The usefulness of the conduct
  • The possibility of alternative behaviours or conduct
  • Potential costs in acting another way
  • The usefulness in acting another way
  • The benefits or safety in acting an alternative way

For instance, California follows a multi-factor test in assessing the duty of care in a negligence action.

Breach of the duty of care

When the law determines that one has a duty of care, the failure to adhere to the duty of care can result in liability towards another.

In tort law, the first element to provide is that the defendant had a duty of care.

The second element to prove is that the defendant breached his or her duty of due care.

To determine that a person breached the duty of care, the courts will typically evaluate the person’s conduct against the standard of a reasonable person.

The question a court will need to answer is the following: how would a reasonable person act in a similar situation.

When the court defines the degree of prudence and diligence a “reasonable person” would have exercised in the circumstances, the next step is to evaluate whether a person’s actions fell below such standard.

If so, the person will be considered to have breached the duty of care.

If not, the person will not be considered to have breached the duty of care even though his or her actions or conduct injured another.

So what are the consequences of breach of duty of care?

If a person breaches his or her duty of care, the court will hold the person liable for the damages caused.

If a person did not breach the duty of care, even if damages were caused to another, the court will not hold the person liable.

Here are some breach of duty of care examples where a person can be potentially held liable for damages:

  • A restaurant owner does not place a “wet floor” sign on the floor causing incoming clients to slip and fall
  • A driver does not respect the speed limits harming pedestrians
  • A doctor does not read a patient’s file and prescribes the wrong medication
  • An employer does not provide adequate safety equipment to its employees on a construction site
  • A truck driver does not adequately rest causing an accident due to fatigue 

Duty of care examples

In certain situations, it is widely accepted that one will have a duty of care in favour of another.

Here are some examples where the duty of care generally exists:

  • Doctor and patient relationship
  • Manufacturer and consumer relationship 
  • Surveyor and mortgagor relationship 
  • Directors and corporation relationship 
  • Property owner and tenant
  • Landowner and occupants of the land

Let’s look at a few concrete examples of duty of care.

Example 1: Duty of care product liability 

In product liability, a manufacturer has a general duty of care to ensure that the goods manufactured do not harm the consumers.
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Example 2: Fiduciary duty of care

In business, company directors and officers have a fiduciary duty of care to act in the best interest of the corporation, with prudence and diligence.
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Example 3: Duty of care healthcare

A doctor has a medical duty of care vis-à-vis his or her patients to ensure that they are prescribed the right medication, are properly diagnosed, operations are done in accordance with recognized standards and so on.

Violating the medical duty of care can lead to medical malpractice lawsuits or negligence lawsuits.
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Example 4: Professional duty of care

An attorney has a legal duty of care to legally advise his or her clients in a competent and knowledgeable way to ensure that the client is represented in the best possible light.

Violating the legal duty of care can expose the attorney to legal malpractice lawsuits.
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Example 5: Property owners

Property owners or business owners have a duty of care to those who enter their premises or come into their property to ensure they are free from foreseeable danger.
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Duty of care FAQ

Duty of Care FAQ

What is a duty of care

The duty of care is a legal obligation imposed on a person or entity requiring them to protect and safeguard others from harm when in their care or in their interactions.

Concretely, this means that an employer must make the workplace safe for the employees.

A business owner must make the commercial store, boutique or shop environment safe for clients to enter and navigate.

An accountant to file his or her client’s income taxes with care and diligence.

What is an example of duty of care

Here are some examples of duty of care:

  • Employers making sure employees travel safely
  • Taxi cabs ensuring passengers are safe during a ride
  • Construction companies ensuring employees are safe on a construction site
  • Doctors ensuring they treat patients in accordance with sound medical standards
  • Lawyers ensuring they represent their clients in accordance with sound legal reasoning and judgment
  • School teachers ensuring the children are safe when in their care
  • Restaurant owners ensuring the clients in the restaurant are safe

Who is responsible for duty of care

In any given situation, anyone may have a duty of care towards another.

There is no single definition of the “duty of care” applicable to everyone in the same way.

Every situation is unique and a person’s duty of care may vary.

There are some situations where the law has consistently confirmed the existence of a duty of care, such as:

  • Doctor having a medical duty of care for patients
  • Manufacturers having a general duty of care to consumers 
  • Company directors and officers having a fiduciary duty of care to the corporation 
  • Landowners having a standard duty of care to those on their premises

What does duty care mean

The duty of care meaning can be summed up as follows:

  • Making sure that you do not cause foreseeable harm to others with your actions and omissions
  • Making sure that you protect the health, safety and well-being of those your care

What does duty of care mean in the workplace

In the workplace, employers typically have a duty of care to ensure their employees are safe.

A company’s duty of care towards its employees can include:

  • Protecting the health of their employees at the workplace
  • Protecting the safety of their employees at the workplace, during business trips or outside of the workplace if the task is related to their job
  • Protecting the well-being of their employees (mental and physical)
  • Ensuring the employees are generally free from harm

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