A commonly used term in personal injury cases is the “duty of care”. This article will discuss how the duty of care is breached and how this may lead to a personal injury case.
Duty of care plays an important role in determining fault in a personal injury case. A basic English definition of the duty of care is “a moral or legal obligation to ensure the safety or well-being of others”. When an individual fails to meet the legal obligation of a duty of care, they are said to have breached their duty of care and may be held liable for any harm or injury that results.
A person can hold another person or entity liable for breaching a duty of care by way of filing a lawsuit of negligence. The person filing the lawsuit is referred to as the plaintiff and the party being sued is the defendant. However, at this stage, the breach of a duty of care and negligence are just allegations or claims and must be proved. To have a successful personal injury case the plaintiff must prove four elements:
- A duty of care must exist
- There must be a breach of the duty of care
The legal term negligence basically means a breach of a legal duty of care. The duty of care and the breach form part of the four elements to be proven by the plaintiff. The duty of care must be established. For example, in a car accident a driver always has the duty of care of driving in a way that ensures the safety of all other road users. The plaintiff must prove that there was a breach of this duty of care. There must exist some harm or injury suffered by the plaintiff; therefore, near misses usually do not count. Further, there must be a link between the harm or damage suffered and the breach of the duty by the defendant. This is referred to as causation.
How then does a breach of the duty of care lead to a personal injury case? Consider this illustration: James drives his semi-truck. One day he is running late and is driving over the speed limit. Annie is in her personal vehicle on the way to the grocery store and is slightly under the speed limit. James runs a red light and slams into Annie. Annie suffers a spinal injury, broken arm and broken ankle.
Annie may choose to file a personal injury lawsuit against James. To succeed in her lawsuit, Annie would need to prove the following:
- James had a duty of care. Every driver has a duty of care to other drivers and generally to anyone in the area to drive safely.
- James breached his duty of care – driving above the speed limit and running a red light qualifies as a breach of duty of care.
- Harm – Annie’s injuries count as harm or damages
- The breach caused harm. Had James not sped and run a red light, Annie would not have been injured.
Therefore, Annie has a valid case.