Louis Nel

ADV. LOUIS NEL

What is this so-called, mystical  ‘Duty of Care’? It is inherent in the definition of negligence but the ‘duty’ element merits a more detailed discussion.

 

So how does liability arise?  Liability can be linked to a breach of contract or delict or as it is know in English law ‘tort’ and more specifically negligence.

 

There are many definitions of the latter so let’s look at a few:

 

  • ‘Basic negligence is based on the rule that everyone must take reasonable care to avoid injury to others’ (www.nolo.com)
  • ‘It is conduct that falls below the standards of behaviour established by law’ (Legal Dictionary)
  • It can be described as a ‘moral and legal obligation’ (Knowledge.ATPI.com)
  • ‘Failure to behave with of care that someone of ordinary prudence would have exercised under the same circumstances’ (Legal Information Institute – Cornell Law School)
  • It is when a person or entity acts ‘incompetently or below the recognized standard of care …’ (Brent Adams)

 

The different legal systems apply different ‘tests’ to ascertain whether someone has been negligent but there’s a material overlap and generally the tests address the following questions:

 

  • Did the defendant (i.e. alleged perpetrator) (‘D’) owe the party claiming damages/restitution (i.e. the plaintiff/alleged victim/aggrieved party) (‘P’) a duty of care (‘DOC’)(See discussion below)?
  • Was there a relationship of ‘proximity’ between the D and P (e.g. teacher/pupil – see discussion below)
  • Did D breach such DOC?
  • Did P suffer damages and/or injury (i.e. harm)? 
  • Did the act or omission of D result in such harm, in other words was there a causal link (nexus) between the act/omission and the harm?
  • Was the harm foreseeable? (The courts will look at not only the foreseeablity but also chances of it happening and the degree of damage/injury were it to occur)
  • Is it ‘fair, just and reasonable’ to impose liability on D (Wikipedia)?     

 

While we are at it let’s clarify what is meant by ‘gross negligence’: It is a more serious form of (‘ordinary’) negligence and has been described as ‘a complete failure to show care that in fact implies recklessness or willful disregard for safety and human life’ (Brent Adams)  

 

It should be noted that there are effectively two types of duty of care: first there is the omnipresent one described in the definitions above and then there is the one that arises from circumstances resulting in the so-called ‘proximity’. So the first one is the ‘basic ..moral obligation’ to act ‘competently’ and with ‘reasonable care’. The second one is over and above the first and here are some examples:

 

  • An omission e.g. dropping a cigarette butt and failing to ensure it is ‘dead’/no longer glowing
  • Arising from the relationship with/between the parties e.g. doctor/patient; teacher/pupil; caregiver/recipient of care; bank/client

·      Control: e.g. a driver of a heavy duty truck on the highway ( and ANY road users for that matter) – such a duty of care could even be extended by helpers who stop to assist a party (B) injured due the negligence of the driver of the other vehicle (A) e.g. if a party stops to assist B and is run over, B or his/her estate  could have a claim against A (Haynes v Harwood – see Slideshare.net)   

·      Assumed responsibility: e.g. picking up a hitchhiker

·      Creation/adoption of/introducing a risk: e.g. mopping a floor in a supermarket or driving a forklift in a parking lot     

·      Playing (a dangerous) sport BUT you have to bear in mind the concept of voluntary acceptance of risk i.e. knowing/being aware of the risk involved and participating nevertheless (volenti non fit injuria)  

 

 

It is extremely important to note that despite most of the definitions emphasize or ‘harp on’ acts, liability can also arise from an omission i.e. a failure to act.  

 

How does all of this relate to social media? Let’s revisit what’s meant by the latter – let’s start with one we all know about i.e. Facebook – did you know that it has over 700 million users? Here are more:

 

DEFINITION

‘Social media are media for social interaction using highly accessible and scaling publishing techniques….use web based technologies to turn communication into interactive dialogue’  (Infolawgroup.com)

 

TYPES         

Blogging platforms such as WordPress; Digg; Delicious; Instagram; LinkedIn; Quora; Wikipedia & YouTube

 

DOC WHEN USING SOCIAL MEDIA (‘SM’)

As you may have gathered by now, the minute you start using SM, you owe ‘the world at large’ a DOC! More about that next time!   

 

DISCLAIMER 

 This newsletter/article is intended to provide a brief overview of legal matters pertaining to captioned matter and is not intended as legal advice. As every situation depends on its own facts and circumstances, only professional advice should be relied on. Please contact Adv. Louis Nel at [email protected] or on +27 83 679 4556’