Regardless of whether the two parties involved are parties to a contract, a tort is defined as a breach of a duty of care for another party where the breach results in loss or injury to that person for which the law provides a remedy. Donoghue v. Stevenson, a well-known English case from 1932, served as the foundation for the contemporary law of negligence. In that incident, a bottle of ginger beer’s contents, which included a dead snail, hurt Donoghue. A friend of Donoghue bought the bottle from a store that had bought it from Stevenson, the bottle’s maker.
In effect, the Court in Donoghue held that even though there was no contract between the ultimate consumer of the contents of the bottle and its manufacturer, the manufacturer ought to have considered that consumer when it filled the bottle and ought to have taken reasonable care to avoid causing that consumer injury. Therefore, Donoghue and Stevenson had no contractual relationship, and thus, there was no basis for a lawsuit before that case. Unintentional and intentional torts are separated into two groups. Negligence is the greatest group of unintended torts and the main topic of this chapter. Given that a significant portion of claims made against these professionals are based on carelessness, architects, engineers, and geoscientists are particularly interested in negligence claims. Fraud and trespass are examples of intentional torts.
The law of negligence has developed since Donoghue v. Stevenson. However, the fundamental components of negligence are the same regardless of the jurisdiction. A plaintiff pursuing a negligence lawsuit must establish the following elements in order to succeed: A duty of care was due by the defendant to the plaintiff; this obligation was broken; the plaintiff incurred loss or damage; and the breach was the direct cause of the plaintiff’s loss.
Additionally, these components serve as the cornerstone for crucial defences against negligence claims. To refute the claim, the defendant merely needs to demonstrate that one of the factors is missing. There can be no recovery if there was no breach of the duty of care, no damage was incurred, no causation, or no duty at all. For instance, even if a negligent architect omits a crucial component from the design, it’s entirely possible that the client won’t suffer any loss (for instance, if the error is discovered before pricing is finalized), in which case a claim of negligence against the architect would fail. The law around duty of care is the least established of these components. Professionals generally have a responsibility to take care of everyone who is so directly and directly affected by their actions that they should fairly have them in mind. In general, this duty is owed to the clients, employers, and members of the public whom such professionals may have anticipated would be impacted by their actions or words. A legal notion known as breach of duty entails the setting of a standard of care.
Duty of Care (general)
Early instances established that before a negligence claim can prevail, a duty of care must be owed. A component of negligence called “duty of care” is based on foreseeability that is reasonable. A duty of care is owed to the plaintiff if the defendant knew or should have known, at the time the negligent act was committed, that the plaintiff might sustain loss or damage. For instance, if a building is being designed negligently, an engineer should reasonably anticipate that a tenant may sustain injuries in the event of a collapse. Thus, the engineer would owe a duty of care to a renter hurt in such a catastrophe. On the other hand, even if a geoscientist created a secret report carelessly for a client, and that client’s report was afterward relied upon by a third party, such as an investor, the investor may find it challenging to establish that the geoscientist owed him or her a duty of care. This is due to the fact that, given the secret nature of the report, it would be challenging to demonstrate foreseeability. In fact, a common disclaimer in studies from engineers, architects, and geoscientists states explicitly that the study should not be relied upon by third parties.