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A duty of care refers to the circumstances and relationships giving rise to an obligation upon a defendant to take proper care to avoid causing some form of foreseeable harm to the claimant in all the circumstances of the case in question.
Once a claimant has established the necessary duty of care owed by the defendant, determined pursuant to various legal tests and depending on the nature of the case, and proven loss or injury that was foreseeable and which stemmed from a failure to take appropriate care in the particular circumstances of the case, the defendant could be liable to pay damages to a party who was injured or who suffered loss as a result of that breach of duty.
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Enforcing security—checklist Initial options to consider Lenders will often see formal enforcement action as a last resort. As such, a lender will often first consider the following: Refinancing This involves the borrower paying off the existing loan with a new loan that has more favourable repayment terms and/or less onerous interest rates for the borrower. The new loan may be from the existing lender or from an alternative lender. Often this will turn on whether the borrower's current lender wishes to continue the banking relationship with the troubled borrower. Restructuring This process involves making significant changes to the structure of the borrower company or its operations to make the business run more effectively and profitably so that repayment of the debt becomes more likely. For restructuring to be an option, it requires: • a viable underlying business, although it may currently be carrying too much debt • early recognition of the distress • liquidity while restructuring is investigated • support from the main stakeholders For more information, see...
Consultant’s appointment—checklist Consultant appointments take many forms and there is considerable flexibility in the layout and in the drafting of clauses. Parties may choose to adopt one of the standard forms of appointment published by industry bodies, see for example Practice Notes: RIBA Standard Professional Services Contract 2020 for Architectural Services, NEC Professional Service Contract, ACE Professional Services Agreement and CIC Consultants' Contract Conditions. Alternatively, many consultants and employers have their own bespoke terms for the appointment of consultants on construction projects. This Checklist sets out the key clauses which should generally be included in a well-drafted consultant appointment. It can be used when drafting or reviewing proposed terms for a consultant. This Checklist contains links to clauses within our clause bank which may be used or adapted for use in consultant appointments. For precedent forms of consultant appointment (which contain the provisions referred to below), see Precedents: Consultant’s appointment—long form design and Consultant’s appointment—long form non-design. Cover page For clarity, a well-drafted appointment should have a cover page containing...
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The reasonable person testOnce a court has determined that a common law duty of care exists between the parties, the next stage is for the claimant to prove that the defendant has breached this duty ie the defendant’s conduct has fallen below the standard of care required. Although expert evidence may be obtained this is usually a question of fact. For guidance on whether a duty of care is owed, see Practice Note: Duty of care in personal injury claims.In assessing whether the defendant has breached the duty of care, the court will normally use the reasonable person test ie what would the reasonable person have done, or not done, in the circumstances of this particular incident. For guidance on breach of duty in clinical negligence claims, see Practice Note: Duty of care and breach in clinical negligence claims.When considering the standard of care required of the defendant, the court may consider:•the capacity of the defendant eg age—see below•whether the claimant gave consent—see below•the cost and difficulty of the defendant...
This Practice Note will consider the common law duty of care. For information on statutory duties, see Practice Note: Breach of statutory duty and the overlap with the common law.For breach of duty of care, see Practice Note: Breach of the duty of care in personal injury claims.For guidance on vicarious liability, see Practice Notes: Nature and operation of vicarious liability, Scope and impact of vicarious liability and Vicarious liability in the course of employment—the close connection test.For information on the duty of care in clinical negligence claims, see Practice Note: Duty of care and breach in clinical negligence claims.For a claimant to succeed in proving their claim in common law negligence they must first prove that the defendant owed them a duty of care.Examples of established relationshipsWhen assessing whether a duty of care exists, the court will consider whether there is an established precedent for the relationship between the parties and follow the precedents unless it is necessary to consider whether they should be departed from.Common examples of situations...
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Letter to lenders governing appointment of creditors’ committee To: The persons listed in Schedule 1 to this letter [insert names of Lenders] From: [insert name of solicitors for the Creditors' Committee or the name of the Chair] Date: [insert date] Appointment of Creditors' Committee We refer to the discussions at the meeting of creditors convened by [insert name of debtor company] (the Company) to discuss the proposed restructuring. 1 Definitions and interpretation 1.1 Definitions In this letter, unless otherwise provided: Business Day • means a day other than Saturday, Sunday and public holidays when clearing banks generally are open for business in London; Chair • means the Lender appointed to chair the Creditors' Committee under the Creditor's Committee Agreement; Commitment • means (a) any undrawn amount which a Lender has committed to make available to the Company (but excluding any undrawn uncommitted amounts); (b) the principal amount of a Lender's participation in any utilisation by the Company, in each case under the Finance Documents; Committee...
Letter of claim for negligently performed surgery Dear [insert organisation name] Letter of Claim [insert claimant’s name] v [insert defendant’s name] We have been instructed to act on behalf of [insert claimant’s name] in relation to treatment carried out/care provided at [insert name of defendant hospital] by [insert name(s) of surgeon(s) if known] on or around [insert date(s)]. Please let us know if you do not believe that you are the appropriate defendant or if you are aware of any other potential defendants. This letter is sent pursuant to the Pre-Action Protocol for the Resolution of Clinical Disputes. You should acknowledge receipt of this letter in writing and identify who will be dealing with this matter within 14 days. Failure to acknowledge receipt may result in the Claimant issuing proceedings without further reference to you. Further within four months of receipt of this letter you should provide a Letter of Response setting out whether the claim is admitted or denied and provide copies of any...
Dive into our 48 Precedents related to Duty of care
Should an employer insist that a consultant exercises ‘all’ reasonable skill and care? Does the inclusion of ‘all’ impose a higher duty of care? Under section 13 of the Supply of Goods and Services Act 1982 (SGSA 1982) a consultant (as a professional) providing services must do so with 'reasonable skill and care'. The statute does not require the exercise of 'all reasonable skill and care'. However, the parties can choose to impose a higher duty than this (SGSA 1982, s 16(3)(a)). There is no settled meaning of the specific term 'all reasonable skill and care' as opposed to 'reasonable skill and care'. There are cases considering whether a party has exercised reasonable skill and care, and the general meaning of reasonable skill and care, however, none of these look at the particular impact of adding the word 'all'. Within judgments, the two expressions appear to be used interchangeably: even where the contract at the centre of litigation refers to 'all reasonable skill...
Where a builder working on property A causes damage to a neighbouring property, who is liable to the neighbour for that damage, the employer (who owns property A) or the builder? If a builder causes physical damage to a neighbouring property then it is possible that both the employer (who owns the property on which the builder is working) and the builder would be directly liable to the owner of the adjourning damaged property. The basis for such liability can be in negligence, nuisance, disturbance of easements, or liability under the rule in Rylands v Fletcher which provides that a person who allows a dangerous element on their land which, if it escapes and damages a neighbour, is liable on a strict liability basis—it is not necessary to prove negligence on the part of the landowner from which has escaped the dangerous substance (see Practice Note: Private nuisance and the rule in Rylands v Fletcher—common law liability for environmental harm). Liability in negligence is established in...
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Banking & Finance analysis: This News Analysis provides a summary of the cases we have alerted in Banking & Finance for May 2025.
Construction analysis: This is the latest instalment in a series of decisions arising out of claims by a developer (BDW) against its structural engineer (URS) in respect of structural defects in two residential developments, where the repair works were carried out at a time when it no longer had any proprietary interest in the developments and no claims had been intimated by the any third parties. In its much-anticipated judgment, the Supreme Court affirmed the decisions of the Technology and Construction Court and the Court of Appeal, holding that: (i) the repair costs fell within URS’s scope of duty and were not too remote; (ii) the retrospectively extended limitation period in section 135(3) of the Building Safety Act 2022 meant that there was no relevant time bar at the time of the repair works; (iii) URS owed a duty under section 1(1)(a) of the Defective Premises Act 1972 (DPA 1972) to BDW as the developer; (iv) BDW was entitled to claim a contribution from URS when it had paid compensation...
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