A Duty of Care
“A duty of care” implies the responsibility that one party has to another, where the first party has to ensure that the second party is protected from unreasonable harm or loss. It is one’s legal duty to ensure that when dealing with other people or members of the public, he or she exercises caution, attention, and prudence by taking necessary measures to avoid preventable harm.
An employer has to ensure that the employee’s health, wellbeing, and safety are assured. Nurses and doctors also have a duty of care to ensure that the health and wellbeing of patients are maintained. Anyone who is in charge of a situation has to demonstrate concern to uphold the mental and physical well being of their subject. It is a legal requirement for the person in charge or the defendant to ensure that loss or unreasonable harm does not occur to the claimant or the victim.
A duty of care exists in situations where an individual or a group of people are engaged in activities that pose a major risk of reasonable harm, mentally, economically, or physically to other people. For instance, workers constructing a building are at risk of physical harm. Their employer has the duty to ensure that necessary safety measures are put in place. Road users need to take caution to prevent other road users from suffering harm. Similarly, a manufacturer has to ensure that the goods manufactured do not cause harm to the consumer.
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A duty of care can be said to exist where one party creates a situation that can result in injury or harm to another party. For instance, doctors and nurses must take care of patients by administering effective medication and providing the best service possible without neglect. By failing to take caution, psychological, emotional, physical injury or death can occur to the patient. In the same way, a driver on the road has a duty to ensure he drives well to prevent causing preventable accidents which could cause injuries and death to other road users. However, in cases where one party has not created a situation that can harm another party, no duty of care exists.
The duty of care also touches on the need to exercise a reasonable degree of caution when dealing with other people to avoid negligence as negligence would result in harm. When dealing with children, for instance, it is necessary for one to exercise great caution to avoid causing them harm as children and youth are highly vulnerable. Failure to take necessary measures to prevent reasonable harm or losses from occurring amounts to a breach of a duty of care and can result in prosecutions. Prosecutions can be effected if the claimant can establish that the harm was reasonably foreseeable and preventable. The claimant further needs to prove that he or she was near the event when it occurred.
For children and persons with disability, the extent of the duty of care varies. If a person with a disability is found negligent for instance, the extent to which they exercised caution must be established. However, if the extent of the disability is such that it prevents one from taking all necessary caution which a non-disabled person would have taken, then they not negligent.
For employers, the law requires that they put in place wide variety of measures to prevent possible harm from occurring to employees. Such measures can include providing sufficient training, ensuring the employer-employee communication channels are effective, protecting them from bullying or harassment from colleagues, among other measures.
Tort law tends to inquire what a ‘reasonable person’ would have done in a given situation. A ‘reasonable’ person would have to take extreme caution when dealing with other people. Anyone entrusted with being in charge of another person, a group of people or members of the public has to take all necessary measures to protect the health, safety, and wellbeing of the latter.
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