Duty of care

Duty of Care

What Is It?

• An individual may be owed a duty of care by another, to ensure that they do not suffer any unreasonable harm or loss.

• If such a duty is found to be breached, a legal liability is imposed upon the duty-ower, to compensate the victim for any losses they incur.

• A duty of care arises where one individual or group undertakes an activity which could reasonably harm another, either physically, mentally, or economically.

Donoghue v Stevenson

• A woman succeeded in establishing a manufacturer of ginger beer owed her a duty of care, where it had been negligently produced. Following this, the duty concept has expanded into a coherent judicial test, which must be satisfied in order to claim in negligence.

• How to determining the existence of a duty of care in the tort of negligence?

The Neighbour Principle

• Lord Atkin's speech during Donoghue v Stevenson:

“….You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? …Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.”

Anns Test

• Anns v Merton London Borough Council the neighbour principle was adopted in a formal test for negligence.

• Negligent construction of a block of maisonettes, commissioned by the Merton London Borough Council. Had poorly constructed foundations, resulting in sloping of floors, and cracks in the walls. Lessees sued the council in negligence, alleging a duty of care existed for the building to be properly constructed and in a usable state.

• The test established by Lord Wilberforce - Anns test - imposed a duty of care where:

• Sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer and the person who has suffered damage, such that carelessness on the part of the former is likely to cause damage to the latter

The three stage test

• A criticism of the Anns test had been that it combined the test for proximity of relationship with forseeability of harm.

• Whereas Lord Atkin's neighbour principle emphasised a need for both a proximate relationship, as well as a forseeability of harm.

• Lord Oliver's speech surmmary for the test for a duty of care:

1) The harm which occurred must be a reasonable foreseeable result of the defendant's conduct;

2) A sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer and the person who has suffered damage;

3) It is fair, just and reasonable to impose liability.

Duty of Care Relating to Property

• Any let property is deemed in law to be managed by a professional landlord and as such he owes a duty of care to his tenant.

• This includes having knowledge of all occupational uses and habits

that could be reasonably

foreseen.

Who Owes A Duty of Care

• Are mortgage providers in breach of duty of care too knowingly lending to untrained start up landlords?

• Does the Association of Residential Letting Agents provide training to its members?

• Chartered Institute of Housing provides only a one day course in condensation and ventilation its very unlikely anyone is providing anywhere near the necessary training.

• Are solicitors knowingly conveying properties to Landlords failing to draw attention the hazards of the use of those properties?

• Are the Law Society and Insurers even aware of the risks?

Landlord & Tenant Duty of Care

• Thus the hazards as far as the landlord are concerned are letting to a large family or student share who do not open windows, and use unvented drying machines indoors, dry clothes on radiators and leave bathroom doors open.

• Atmospheric dampness which would or could arise from this should be reasonably foreseen by both the

owner and his agent.

• From the tenants point of view they occupy the property in what they regard as a normal way and do not open windows, and use unvented drying machines indoors, dry clothes on radiators and leave bathroom doors open.

• Condensation arises as a result and in due course black or gray mould become evident. Over time spores multiply exponentially from increased germination and are breathed in by the tenant and his visitors. Continual exposure to such conditions can cause respiratory irritation leading to asthma and respiratory disease.

• By the time the tenant reports this to the landlord he could have become quite ill.

• Thus a situation arises for the landlord in which he soon loses control over and is then faced with a re-housing bill and damages for loss of health and even work as a result plus legal costs.


• The damages could arise to many years rent. • The landlord’s agent is equally as responsible and he could lose his

business over unaffordable costs and damages.

• There are two ways of minimising risk –

1) Ensure permanent adequate ventilation –

2) Discharge the duty of care by ensuring the above and also by undertaking an audit of the property including a walk through survey by an ISSE specialist who will audit the property identify the risks and advise the landlord agent and if authorised the tenant. Training can also be provided to the tenant in how to minimise the risks. The training schedule is signed by the tenant.


• The defence to any potential tenant action would be highly credible and would potential defeat any negligence claim:

• “The landlord has taken all reasonable steps to ensure a successful occupation on the part of the tenant.”

• Any complaint by the tenant can be evaluated using the audited log book as a template and reference point with a further visit by the specialist surveyor to assess the claim.


A Surveyors Duty of Care to Clients

• It is best explained to clients when doing the survey. e.g. ISSE surveyors are specialists and thus expert in their field. Thus the standard by which we will be judged is that prevailing in the industry.

• If we could not be bothered to lift a floor board to inspect a sub floor area for decay and insect attack and the purchaser bases his decision on your failure to undertake the survey properly without reasonable excuse we will be liable for the sum at least equivalent to the value of the work required plus costs.

• If the floorboards could not be lifted because carpets were fitted and furniture in place we would have to have pretty good reason as specialists not to lift them or to explain to the client that access must be made available – general practice surveyors are not as protected as they think with their exclusion causes – unless it was reasonable for them to not implement that part of the survey.

• Surveyors cannot escape totally as they would be judged by the standard of knowledge prevailing within the profession which is high.

ISSE Duty of Care

• In order to validate the ISSE role in this training and expertise area a certificate of Toxicology in Buildings is given out.

• The ISSE aims to create a seamless training route as follows in order to generate confidence.

Business

Duty of care