What Is A Duty Of Care And When Does It Apply?
Posted on 23rd March 2020
Is there a duty to protect individuals if there is no specific “Law” or “Regulation” in place saying so?
A recent statement by the National Fire Chiefs Council (NFCC) praised the announcement of a new bill in parliament to increase and tighten the obligation on building owners and managers, many of the measures being proposed in the wake of the Grenfell Tower Disaster and the subsequent Enquiry. The bill is expected to expand on the Regulatory Reform (Fire Safety) Order 2005 [FSO] by increasing and clarifying obligations surrounding cladding and fire doors.
This brings up a question that MG Legal, your personal injury solicitors in Longridge, are often asked:
Is there any Law or Regulation that needs to be breached before I can pursue someone?
Generally, this question is asked in respect of a potential claim and is most often following an accident either at work or in a public place, either in the street or in a business like a supermarket, gym or a hotel. As Legislation becomes ever more comprehensive, with each amendment, addition or update learning from the gaps or ‘loopholes’ in the last, this is less likely. However, not every eventuality can be covered and so, in short, there does not need to be any breach of a Regulation or Law in order to constitute a failing in a duty.
What does constitute a breach of duty?
Clearly, any obvious failing that contravenes a Law or Regulation constitutes a breach of duty and so, for the purposes of a claim if, say, you have not been trained in manual handling at work and you are tasked with a manual handling task, you would likely have a right to claim for any injury as this would be a clear breach of the Manual Handling Operations Regulations 1992.
With that said, even with training, your employer must have what is generally considered a “safe system of work” and so if, for example, you are injured by a colleague who flails a crowbar around whilst undertaking urgent repair work without specific instructions how the work (this did happen to one of our clients once) then this would also be considered a breach of duty as the incident occurred at work. As the incident occurred whilst the injured party was in the care of their employer and was injured by another employee who was not working safely, this would constitute a breach of duty. The case would, of course be more prone to dispute depending on how the employees were instructed to commence the work, which is
The same applies to incidents in the public arena, where there are various regulations but at the same time, there is much more to go wrong. If you are in a shop and someone has failed to affix a shelf properly, which then falls on you, this is likely a straight forward breach of duty.
Where is a breach of duty arguable?
A regular example that MG Legal, your personal injury solicitors in Longridge, see are Tripping incidents on public pavements. Tripping incidents in the street are governed by the Highways Act 1980 which states that it is the duty of a local authority to maintain a highway (footpath, pavement, road etc). This duty is enshrined in these regulations and so is neither negotiable nor arguable.
The first, slightly grey, area is the dimensions of a defect. It is “generally accepted” that a defect on a pavement is something that is 25mm or more out of line with the surrounding pavement, with the exception of features which are meant to be like this, such as steps or kerbstones. Defects in the road are “generally accepted” to be 40mm or more in depth. Whilst “generally accepted” this is not enshrined by any Law or Regulation, so it would be for the parties involved, or the Court, to make a decision that the defect does indeed constitute one of these “generally accepted” defects.
Section 58 of the Highways Act 1980 provides for the Defence of such claims and again, provides that the Highways Authority (usually your County or Unitary Council) has a responsibility to carry out proper inspections of the area, of a regularity that is in line with the use of the area and repaired within a reasonable time-frame. So, a main city centre high street might require inspecting several times per year, whilst a rural road might only need inspecting once per year. Again, there are grey areas and these are where dispute arises.
What should I do if I have an accident which I believe was not my fault?
Get in touch with MG Legal, your personal injury solicitors in Longridge, to discuss making a claim. Our personal injury team have many years of experience in the field and we can make a swift assessment of your incident and injuries and advise on the best way to pursue a claim.
We aim to accept all personal injury cases on a Conditional Fee Agreement (no win, no fee agreement) basis to ensure that you have the access to the legal representation required to give your claim the best chance of success. We have offices in Longridge, Garstang and Lancaster and we are happy to hear from you by phone, email, web-contact form or in person if you wish to drop into any of the offices. We will put you in touch with a member of the personal injury department and we will look to have your claim moving the same day.
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