Duty of Care
Duty of care
The first element of negligence is the legal duty of care. This concerns the relationship between the defendant and the plaintiff, which must be such that there is an obligation upon the defendant to take proper care to avoid causing injury to the plaintiff in all the circumstances of the case. There are two ways in which a duty of care may be established:
- the defendant and plaintiff are within one of the ' special relationships'; or
- outside of these relationships, according to the principles developed by case law.
There are a number of situations in which the courts recognise the existence of a duty of care. These usually arise as a result of some sort of special relationship between the parties. Examples include one road-user to another, employer to employee, manufacturer to consumer, doctor to patient and solicitor to client.
Dereliction or breach of that duty
Dereliction of duty generally refers to a failure to conform to rules of one's job, which will vary by tasks involved. It is a failure or refusal to perform assigned duties in a satisfactory manner. Dereliction of duty on the part of an employee may be cause for disciplinary action, which will vary by employer. It may refer to a failure by an organization member to abide by the standing rules of its constitution or by-laws or perform the duties of the position appointed to.
Damage as a result of that breach
For many torts, damage is a necessary part of the tort. Thus, it is not enough to demonstrate that you have suffered the wrong in order to win a tort case, you must also have legally recognized damages that were directly or indirectly caused by the tortfeasor as a result of the tort, and be able to prove the extent of those damages.
Proximate cause means that you must be able to show that the harm was caused by the tort you are suing for.  The defense may argue that there was a prior cause or a superseding intervening cause. A common situation where a prior cause becomes an issue is the personal injury auto accident, where the person re-injures an old injury. For example someone who has a bad back is injured in the back in an auto accident. Years later he is still in pain. He must prove the pain is caused by the auto accident, and not the natural progression of the previous problem with the back. A superseding intervening cause happens shortly after the injury. For example, if after the accident the doctor who works on you commits malpractice and injures you further, the defense can argue that it was not the accident, but the incompetent doctor who caused your injury