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for Duncan Lewis

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– Duty of care

Date: (3 May 2013)    |    

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Negligence or duty of care refers to situations and relationships which according to law gives rise to legal duty to take care. Any failure to take such care which results in the defendants liable to pay damages to a third party claiming damages for injuries or loss suffered due to such act or omission is said to be breach of duty of care.
Duty of care depends on the type of loss and different legal tests applied to different losses. This could include losses arising out of personal injury, property damage, psychiatric injury, pure economic loss and defective items.
The onus is with the claimant to establish that the defendant owed them a duty of care. It is a very tricky and technical issue even for the law to establish whether a liability arises and who is liable for damages, as every negligence case is either decided on precedents or a test of establishing a duty of care.
The test also known as the ‘Neighbour’s test’ after test case Donoghue v Stevenson [1932] AC 562, needs to establish the requirements of Reasonable foresight of harm and a relationship of proximity.
The liabilities arising out of negligence could cover personal injuries, professional negligence, clinical or medical negligence, negligence causing child abuse etc.
Negligence - solicitors
People who want to bring damage claims need to take the advice and services of an experienced solicitor who has had enough exposure to such cases. Though there could be a precedent or cited case similar to the one you may be claiming, the court still needs to be convinced.
In practice the law is more on prohibiting acts which cause damages rather than omissions meaning defendant can be held liable for an act causing damage and not because the damage occurred because of not having done anything. The nature of harm is also considered to determine whether the case merit legal redress.
The same principle is sometimes applied in respect of economic loss. A duty of care is denied when it is considered that such liability would have had caused undesirable impact on the defendant or others in his position or when it is not in the best interests of the public. The law also protects the defendant from excessive and devastating claims.
With law being so restrictive in awarding damages it would be better that those people who want to file such cases get the services of solicitors who have all the legal and technical knowledge and the expertise in dealing with these cases in the court room.
Before choosing a professional negligence solicitor check out whether they offer a ‘no win no fee’ agreement which would also ensure that the solicitor (s) would take up the case only if they are sure they have a very good chance of winning it. This would also help you in eliminating any doubts whether to proceed with your case or not.

 

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