Duty of Care Is a Legal Obligation Imposed on a Person

It is clear that a catering company owes a duty to its customers and people who come in contact with their food. It’s essential to avoid any dispute that Delicious Ltd takes upmost care in preparing food and delivering a service which was agreed upon. In this case different areas of tort law will be covered such as duty of care which clearly exists between the Delicious Ltd and Children of the earth. The proximity of the parties will also be examined. As Maxine and Ted suffered losses beyond what was expected. Application of defences such as remoteness and foreseeability to the case to see if Delicious Ltd has any remedy to the problem will be applied.

Duty of care is a legal obligation imposed on a person to perform while performing any acts which could harm a person or property. The origins of duty of care can be found in cases such as Donoghue v Stevenson [1] , where a woman successfully showed that a manufacturer of ginger beer owed a duty of care, where the production of the ginger beer was negligently produced.

The elements which need to be established in negligence in order to have a successful claim are duty of care and causation. In satisfying this negligence the parties can claim under the law of Tort.

The cases that are important to understanding these ideas are Palsgraff v Long Island Railroad Co [2] , the Palsgraff Case set the idea that an person should not be held responsible for unforeseeable actions and in such scenario a duty will not exist.

In the case of Hay or Bourhill v Young [3] , in the case of Bourhill the law approved, where a passer-by’s injuries was not sensibly foreseeable in a accident, whereas the people in the vehicle that was collided with would be.

Also in the case of Caparo v Dickman [4] , the case of Caparo set onward the contemporary test for the duty of care illustrated that there is a three pronged test with the meaning of following, from the doctrine in Palsgraff and Bourhill. The test includes the following foreseeability, proximity and fairness, justice and reasonableness of identifying a duty.

In the case of Hill v Chief Constable of West Yorkshire [5] , foreseeability is the idea as seen in the case of Bourhill. Proximity is the association between the foreseeability and the two individuals and also includes the justice of such a duty, and justice and reasonableness test is used to enforce the public policy, for example keeping the floodgates closed. The state of affairs that was created in the case of Hill, hence if the police were establish negligent by not catching criminals previous then the floodgates would be opened and police work highly held back.

In the case of Osman v UK [6] , Osman which brought the law of negligence to the ECHR in regards to duty of care and the confrontation of police from accountability under Hill. The ECHR found that the protection was in violation of ECHR Article 6(1), the article states “the right to a fair hearing”, consequently each state of affairs requires a fair hearing, proximity and foreseeability need to be correctly considered. In accordance the case of Barrett v London Borough of Enfield [7] , the case found that such practices can no longer take place, rather fairness and justice need to be determined on the fundamentals of each case.

It is clear from the cases above that courts would establish a duty of care between the parties involved. Delicious Ltd had a duty of care to the Children of the Earth and to prepare the food to the need of the group. It is clear that the children of earth made a agreement with Delicious Ltd. Delicious Ltd would have a duty of care to anyone at the party which consumed their food.

Following Sutherland Shire Council v Heyman [8] , proximity includes the notion of nearness or closeness, a relationship, it embraces physical proximity between the two parties or their goods; It also includes proximity in associations such as employer and employee or of a working man and his customer; It also includes “causal proximity” in the sense of the closeness or directness between the particular act or course of conduct and the loss and injury sustained; It may reflect an assumption by one party of a liability to take care to evade or prevent injury, loss or damage to another, or where a party relies on such care.

The proximity between Delicious Ltd and Ted are close relationship because Ted was part of the group who arranged the catering with Delicicious Ltd. Mexines proximity to Delicious Ltd is different; because she was a guest at the party but not part of the Children of the Earth. Proximity is vital in this case because Mexine is claiming for economic loss and courts require a very close relationship between the parties.

The arguable terms “proximity” and “fair, just and reasonable” are secret devices for the courts to make a judgement upon cases on policy. In the case of Hill v Chief Constable of West Yorkshire [9] , the case was summarised as mother of the last rape victim sued West Yorkshire Police for negligence. It was suspected by her that they had not used reasonable care in catching him. Her representative debated that the police had been careless because they had failed to catch defendant earlier even though he had been brought in previously before his arrest.

They argued that had Sutcliffe been apprehended earlier his final victim, Jacqueline Hill, would not have died. The House of Lords rejected this on the basis that there was insufficient proximity between the victim and the police. Lord Keith also refused to impose liability on policy grounds. His Lordship held that to impose liability in such circumstances would be counterproductive.” [10]

In order to establish whether Delicious Ltd breached their duty of care, the courts would apply the reasonable man theory [11] . From case law, it is evident that a “reasonable man” is one who would consider a number of factors including: the magnitude of the risk; the seriousness of the potential harm; the cost and practicality of overcoming the risk – it is a matter of balancing the risk against the measures necessary to eliminate it. [12]

It is clear that there is a breach of duty of care by Delicious Ltd towards Maxine and Ted. The children of the world clearly asked for egg-free foods to the caterer and whether Delicious Ltd knew of the fact that their religions do not allow them from consuming egg is not of importance. The fact that Delicious Ltd prepared the food due to lack of care and this was not monitored and checked allowed the incident to happen. Maxine knowing that the food would be egg-free consumed the food with good intentions.

Maxine can claim that Delicious Ltd is liable of negligence and they would have the burden of being responsible for all parts of the claim. In Re Polemis and Furness, Wilthy and Co Ltd [13] , the Privy Council decided that the mere fact that the direct consequences of the defendant action would make them responsible for any consequences of those behaviour.

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or do something which a reasonable prudent man would not do.” [14]

The case of the reasonable person, held that any action that has been taken, would take reasonable care to avoid harm to individuals that could be foreseeable claimants, for example it would not matter if the act has never occurred before the likelihood of such an act required that the reasonable person take reasonable care. If a individual has not adopted reasonable care then they would be in breach of their obligation to any foreseeable claimant in any case where there is likelyhood of a injury.

The next topic that needs to be assed is the idea of reasonable care in regards to the reasonable person’s occasion to acquit their duty of care, for example as long as all defence are taken to limit harm then duty is discharged, even in cases where an omission causes the harm reasonable steps have to be taken or a duty of care is owed. This also means that reasonable care is taken to prevent intervening acts do prevent harm however this duty of care is different for different levels of experience.

The final areas of negligence that have to be assessed are causation and remoteness. Causation is determined by the but-for-test whereby it is established on the balance of probabilities, if it is more likely than unlikely that an event was the cause, it is treated as if it was the cause.

The first notion of causation is direct, for example, the injury is ultimately caused by the actions set off by the defendant, for example there is no intervening act that ultimately caused the injury or the act would have occurred anyway even without the defendant’s negligence. The other forms of causation are alternative and cumulative causation.

Remoteness limits the amount of compensation for negligence. The test for causation needs the fact that the defendant is the cause of damage and also needs to asses that the damage received by the claimant was not too remote. As in the situation of Delicious Ltd it is already confirmed that there was a duty of care and that the duty was breached. Remoteness is created so that defendant’s liability to pay damages is fairly placed on them.

The defendant’s responsibility to predict his actions would have caused harm is foreseeability. The application of foreseeability in the Delicious Ltd would be that could have not been responsible for the probable consequences of their act. In previous cases Lords have said to demand a person to foresee beyond their ability is asking too much. For Delicious Ltd to foresee that their actions of lack of care in preparing the food would cause some harm but not in a scope of events which took place. However in this case it would be quite easy for the claimants to prove the link between events which took place.

In Maxine’s case as it is a single operative cause for the loss and damage suffered by Maxine, it is quite simple matter to determine whether that cause was a breach of the duty of care owed to Maxine by Delicious Ltd. In Ted case the sequences of events leading to the nervous breakdown comprises more than one cause. The fact that Ted did not suffer from the act of Delicious Ltd, he only suffered as a result of looking after his wife in hospital. The burden of proof that Delicious Ltd was the cause of his nervous breakdown would be on Ted. In the case of McGhee v National Coal Board [15] , it was the employee that had to show the proof that the actions of his employer had caused his disease. It could be said that Ted acted in a contributory negligence which means that even if there was a single percentage that it was his own fault the compensation could be denied. In the case of Butterfield v Forrester [16] , the defendant did owe a duty of care but the plaintiff caused a danger to himself which concluded that no damages were awarded.

Delicious Ltd could also use the doctrine of Volenti non fit injuria [17] , this means that if a person willingly puts them self in harm’s way they cannot hold defendant negligent. Comparing this to the situation of Ted, it could be seen that because Ted did not look after himself during looking after his wife, he caused harm to himself. In this situation Ted could not hold Delicious Ltd liable for his nervous breakdown.

In conclusion it is clear that tort law is about the allocation of cost to the person who causes harm to others. Delicious Ltd acting in a way which caused lack of care and suffering which lead to loses to Maxine would be hard to cancel out. Although applying the different types of doctrines to Maxine’s case it is clear that in past cases it would be hard for Delicious to not compensate Maxine for her suffering and financial loss. It would be in the interest of the caterer to make a settlement to Maxine. In Teds case there would be a good chance that using the doctrines above Delicious Ltd does not have to compensate Ted for his suffering due to him suffering as a result of his wife’s hospitalisation.