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A duty of care refers to the circumstances and relationships giving rise to an obligation upon a defendant to take proper care to avoid causing some form of foreseeable harm to the claimant in all the circumstances of the case in question.
Once a claimant has established the necessary duty of care owed by the defendant, determined pursuant to various legal tests and depending on the nature of the case, and proven loss or injury that was foreseeable and which stemmed from a failure to take appropriate care in the particular circumstances of the case, the defendant could be liable to pay damages to a party who was injured or who suffered loss as a result of that breach of duty.
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The reasonable person testOnce a court has determined that a common law duty of care exists between the parties, the next stage is for the claimant to prove that the defendant has breached this duty ie the defendant’s conduct has fallen below the standard of care required. Although expert evidence may be obtained this is usually a question of fact. For guidance on whether a duty of care is owed, see Practice Note: Duty of care in personal injury claims.In assessing whether the defendant has breached the duty of care, the court will normally use the reasonable person test ie what would the reasonable person have done, or not done, in the circumstances of this particular incident. For guidance on breach of duty in clinical negligence claims, see Practice Note: Duty of care and breach in clinical negligence claims.When considering the standard of care required of the defendant, the court may consider:•the capacity of the defendant eg age—see below•whether the claimant gave consent—see below•the cost and difficulty of the defendant...
This Practice Note will consider the common law duty of care. For information on statutory duties, see Practice Note: Breach of statutory duty and the overlap with the common law.For breach of duty of care, see Practice Note: Breach of the duty of care in personal injury claims.For guidance on vicarious liability, see Practice Notes: Nature and operation of vicarious liability, Scope and impact of vicarious liability and Vicarious liability in the course of employment—the close connection test.For information on the duty of care in clinical negligence claims, see Practice Note: Duty of care and breach in clinical negligence claims.For a claimant to succeed in proving their claim in common law negligence they must first prove that the defendant owed them a duty of care.Examples of established relationshipsWhen assessing whether a duty of care exists, the court will consider whether there is an established precedent for the relationship between the parties and follow the precedents unless it is necessary to consider whether they should be departed from.Common examples of situations...
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Letter of claim for negligently performed surgery Dear [insert organisation name] Letter of Claim [insert claimant’s name] v [insert defendant’s name] We have been instructed to act on behalf of [insert claimant’s name] in relation to treatment carried out/care provided at [insert name of defendant hospital] by [insert name(s) of surgeon(s) if known] on or around [insert date(s)]. Please let us know if you do not believe that you are the appropriate defendant or if you are aware of any other potential defendants. This letter is sent pursuant to the Pre-Action Protocol for the Resolution of Clinical Disputes. You should acknowledge receipt of this letter in writing and identify who will be dealing with this matter within 14 days. Failure to acknowledge receipt may result in the Claimant issuing proceedings without further reference to you. Further within four months of receipt of this letter you should provide a Letter of Response setting out whether the claim is admitted or denied and provide copies of any...
Will—unmarried, divorced, separated with children, no partner STOP PRESS: Abolition of non-dom regime and introduction of residence-based IHT regime. Finance Act 2025 (FA 2025) which received Royal Assent on 20 March 2025, implements legislation to abolish the remittance basis of taxation and replace it with a residence-based regime, commencing on 6 April 2025. FA 2025 also replaces domicile as the key factor in establishing liability to inheritance tax. Other changes include amendment of the rules determining excluded property status, the abolition of protected settlements status of offshore trusts, and changes to overseas workday relief. For information on these changes, see Practice Notes: The abolition of the remittance basis of taxation from 2025–26 and A new residence-based regime for IHT from 2025–26. See also: Finance Bill Tracking Service: Key dates (Finance Bill 2025) and Finance Act 2025. 1 Revocation I [full name of testator] of [address of testator] revoke all former testamentary dispositions made by me[ to the extent that and so far only as they affect my property of every...
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Is there any guidance or case law on the duty of care owed by a school to children outside of the school gates, eg on a footpath near to the school? Assume that the child was injured by a vehicle. See the judgment of Mr. Justice Nicol in the High Court case of Webster v Ridgeway Foundation School. Paragraphs [111]–[121] of the judgment provide analysis of the relevant authorities on the duty of care owed by a school to pupils within the school. The basic starting point is the oft-cited ratio of Auld L.J. in the Court of Appeal case of Gower v London Borough of Bromley that: ‘A head teacher and teachers have a duty to take such care of pupils in their charge as careful parents would have in like circumstances, including a a duty to take positive steps to protect their well-being.’ The principle is, in effect, that the school is acting in loco parentis. The first issue relevant to this Q&A...
If an individual dies intestate leaving several minor children with different (surviving) co-parents and two of those surviving parents take out the grant of letters of administration for the use and benefit of their respective minor children, how would the grant be expressed and would the administrators have authority to deal with the whole estate? We refer you to Practice Note: Intestacy—priority to apply for grant—Q&As (at 'Particular relatives and entitlement to grant on intestacy', 'Minor children only'). Where a person to whom a grant would otherwise be made is a minor (eg where the deceased was survived by minor children but not a spouse or civil partner), the Non-Contentious Probate Rules 1987 (NCPR 1987), SI 1987/2024, r 32 sets out that a grant of administration for the minor’s use and benefit, limited until they attain the age of 18 years, shall be granted to a parent of the minor or other person who has parental responsibility. Commentary: Grants for the use and benefit of minors: Tolley’s Administration of Estates...
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This week's edition of Construction weekly highlights includes an announcement from the Joint Contracts Tribunal (JCT) regarding its forthcoming Target Cost Contract, analysis of a case in which the Technology and Construction Court (TCC) considered whether a substation owner had been entitled to implement a more expensive scheme of remedial works (Southern Electricity v OCU Modus), a case in which the TCC dismissed a claim against a consultant on the basis that the defects in dispute arose from workmanship and not design (MJS Projects v RPS Consulting), and publication of the Office for National Statistics (ONS)’s construction output for February 2025
This week's edition of Property Disputes weekly highlights includes: High Court decisions concerning a loan agreement found to constitute an enforceable, unregulated investment property loan, a claim for unjustified enrichment relating to work carried out on a residential property and analysis of the grant of an order for possession and sale due to the vesting of property in trustees, an appellant who was barred from pursuing a new claim for the first time on appeal, and an Upper Tribunal (Lands Chamber) decision concerning the First-tier Tribunal’s appearance of bias in raising and determining an unpleaded issue in contractual liability for service charges dispute. It also includes a Court of Appeal decision that disclosure by the court of an assessor’s evaluation of evidence is not required unless fairness demands it, a Country Court decision concerning the vesting of a new lease of a whole building that must be made on terms equivalent to the forfeited head lease, analysis of the treatment of principal secured debt under a mental health crisis moratorium,...
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