Problem Manager

[Openlaw15]

Re: Problem Manager

Whilst duty of care can be a tort, i have to disagree with your statement that there is no contractual duty of care. Under employment law and contract law, duty of care is an implied term - in regards to employment contracts, the following case law confirms that there is a contractual duty of care Walker v Northumberland County Council. In that case the employer knew of the stress related risks but failed to take appropriate action - Leading to their being in breach of the the implied contractual term of duty of care towards their employee!

Ref walker: "Walker claimed compensation from his employer, claiming that they were in breach of their common-law duty of care to provide a safe working environment." Lots of people owe a duty of care whether employer to his employees or employees towards other employers: Donaghue v Stevenson (1932) UKHL 100. It is not an implied term in a contract the ruling is just saying employers owes employees a duty of care (a legal obligation in other words) to avoid any tort (wrong), which just confirms Donaghue. Contract is independent of tort whilst it is easier to establish a claim in common law tort where there is a contract, ie there is close link between employer and employee.

[des8]

Re: Problem Manager

But surely it is an implied term in any contract of employment that the employer ensures the health, safety and welfare of employees.
The employer owes a duty of care to his neighbour.
The relationship has to be established.
The employment contract establishes that relationship, hence duty of care is implied by that contract

[teaboy2]

Re: Problem Manager

Spot on Des, its basic contract law that an implied term of duty of care exists in all contracts. As the contract is what forms the legal relationship.

Tort of negligence (duty of care) applies only in cases where there is no legal relationship via a contract!

So contractual law makes it clear that duty of care is an implied term contained in all contracts!

In the Donaghue v Stevenson case there was no contract between the parties. One was the consumer of ginger beer manufactured by the other party, but there was no contractual relationship. As the contractual relationship was between the seller and the manufacturer for the purchases of the beer from the manufacturer, and the seller and consumer for the purchase of the beer by the consumer. The consumer sued the manufacturer, to whom they had no contractual relationship, for breach of duty of care and lost in court. The claimant only won after petitioning the house of lords who decided that there was a non contractual duty of care owed to the claimant and the defendant had acted with negligence. Prior to that the defendant had successfully argued in court that their was no duty of care as their was no contractual relationship, that alone proves that there is and was, even before the Donaghue v Stevenson case, a recognised and, legally binding, implied term of duty of care in contracts between parties and the house of lords decision did not have any effect the implied term of duty of care under contractual relationships!

So in effect Openlaw is arguing there is no such implied term on the basis of a case law that merely supports that a duty of care applies in tort where no contractual relationship exists, when the history of the case itself is evidence that contractual duty of care was long established prior to that case ever being heard! And therefore seems to be using a case where no contractual relationship existed to persuade us that duty of care, where a contract exists, is nothing but a tort of negligence - when, in fact, its a breach of implied contractual duty of care where a contractual relationship exist rather than tort of negligence (non contractual duty of care)!

In regards to this statement - "in breach of their common-law duty of care to provide a safe working environment." well common-law is case law or legal precedent ~(usually set by case law). There have been cases where people have been successfully sued for breach of contractual duty of care going back 200 years or more!