Duty of Care

The issue here is that people often use legal terms such as “duty of care” to answer almost everything that is a risk (at work, at home, or at the shops).

Some clarification is needed here to assist people in understanding what in fact a “duty of care” really is. 

Essentially, the law recognises that a person (or a company) may be liable if they act negligently towards another person (just for fun, let’s call our person Fred). 

In order for a person to be negligent, the law must consider firstly, whether they owed a duty of care to Fred.  Duties don’t just hang around like fruit on trees, they are recognised because of a relationship that a person (or company) has with Fred. 

For example, Fred’s school teacher, his doctor, the bus driver and the guy driving the car behind him all owe Fred a “duty of care”.

But what does that mean?  Do they all have to keep him safe at school?  If he is injured at work, can he sue his doctor?  Is his employer responsible for ensuring he takes his medication when he is sick?

Just what are these duties making us do?

In a nutshell, a duty of care generally arises when a person (or company) should have foreseen that their conduct could result in an injury to Fred.

For example, Fred’s doctor must ensure that he treats Fred appropriately and by treating him, he is obligated to take a proper history, perform any necessary tests and make an appropriate diagnosis based on all the things that Fred told him about his symptoms.  It is foreseeable that if the doctor does not do all of these things, Fred might continue to feel sick, or maybe even get worse.

Given that Fred’s doctor is trained to take a patients history, perform necessary tests and make appropriate diagnosis for patients, his doctor’s duty of care is to perform the above mentioned steps to the standard required of a prudent doctor.  His doctor is not required to be perfect or to make the correct diagnosis every time.  His doctor is however required to take all steps that are reasonably foreseeable in the circumstances, and almost every circumstance is different.

So his doctor, should at the very least be able to identify whether Fred is in fact sick or not, or if the doctor is unable to provide an appropriate diagnosis, he should probably refer Fred to a further specialist (as long as his symptoms continue).

It seems sensible in this instance to believe that such steps by the doctor would be reasonable.  However, what if Fred continued to experience a red itchy rash on his tummy for 6 months and his doctor ignored Fred’s complaints and the rash got worse and spread to his upper limbs and face.

Do you think it likely that Fred’s injury may have become worse because his doctor did not perform an early diagnosis or treatment?  Did you think Fred’s symptoms could have been avoided had his doctor referred him to a specialist? What do you think his doctor should have done?

These are questions that inevitably require answering in order to ascertain exactly what the “duty of care” entailed.

Did the doctor owe Fred the chance to be symptom free?  Did the doctor have a legal obligation to cure Fred no matter what?  Would your answer be different if you knew that Fred’s condition is unknown to medical science and there is no cure?  Should the doctor be liable for failing to treat and diagnose Fred?

I appreciate this article seems somewhat like a “rant”, however, these issues are complex and the nature of the “duty of care” owed by a person is often a question that requires detailed attention and must not be given the generic value often awarded to it by mainstream society. 

Each “duty of care”, the standard of the care required to be given and whether or not a person has breached that duty of care by acting below the standard required of them are all matters that must be considered when determining if a person has acted negligently towards another.  In these circumstances, parties may be found liable where persons, such as Fred, sustain an injury or suffer loss due to a breach of the duty of care.

Summary

In summary, I feel that my wife’s advice should not entirely be dismissed as it comes with at least some perspective of the relationship that her school has with the people that attend there.  However, whether I am safe from potential claims brought by my children (against me personally) where they believe that I should avoid scarring them completely and psychologically (and for which they would consider was reasonably foreseeable) when I yell out from the car window (often in front of their friends), “I love you too, have a great day”…