Legal Article - Business Law

Tort of Negligence: Basic Principles of Duty of Care

Firstly it has to be established that a particular person or organisation owes a duty of care to someone else. The notion of duty of care is straightforward when considering traditional ďcareĒ organisations such as doctors, hospitals, local authorities, solicitors.

However it extends to a very wide group. In the motor trade there are several scenarios where a claim for negligence could arise. Here are some:

  • Giving wrong advice about the characteristics of a car e.g. these tyres will do 70mph, when they are rated lower.
  • Finding a car for a friend and not disclosing a material problem with it.
  • Leaving cars parked in a blind spot so that someone runs into it.
  • Leaving wheel nuts loose when carrying out a service.
  • Not drying the floor after cleaning in the showroom.
  • Leaving the car in gear after running it.
  • Not showing the customer the carís controls or explaining its performance characteristics when going on a test drive.
  • Leaving a customerís car unlocked on the road.

The list goes on. You have got a duty of care to your potential customers, customers, visitors, employees and even friends.

Secondly, it has to be shown that you are in breach of duty of care. Sometimes this is obvious. Perhaps a manhole for the nderground petrol tank is left off and a customer drives down it, or a customerís car is driven off by a thief when the keys were left in.

Sometimes however it is not so clear-cut. A car may be parked around a corner but the driver of the other car was going so fast he was partly to blame. The tyres werenít rated at 70mph but why was the driver doing 70mph down an English country lane?

At other times someone might want to claim but in fact there has not been any negligence. As examples:

  • There may be no alternative to parking cars in a blind spot. However you may have a barrier in place to stop unauthorised people travelling to that area with warning signs and a wise guy decides he will lift the barrier and shoot round the corner.
  • The cleaner must clean the floors. Perhaps it is preferable if the cleaning is done when customers are not around. But, in any case something may be spilt and needs mopping up.

Showroom floors can be slippery when wet. Good practice is to put warning cones up around the wet area and to place non slip mats at the entrance.

If such cones are used and they clearly mark off the area, then should an irate customer come storming through the area to complain about a piece of chewing gum in their ashtray (which their son nicely left there), and go base over apex then you have not been negligent. They may have bruised her coccyx but they canít claim from you.

Thirdly, any damage must have resulted from the breach of duty. We have seen above that damage has arisen but it was not due to your negligence. Customers may get irate if you have been negligent. However if nothing untoward happens there is no claim. As examples:

  • the wheel nuts may have been left loose on the car. However the customer notices the handling is strange and rings you to tell you they have found loose wheel nuts. You tell them to wait and you will send someone out straightaway to the car.
Being impatient they decide they canít wait and drives to the garage leading to an accident as a result of the poor handling. The damage has not arisen through your negligence but through theirs.
  • you leave the customerís car unlocked and ready for collection. The customer gives you a mouthful when arriving ranting and raving about what might have happened.
There is no claim if nothing was stolen.

As we saw previously there are cases where there is a sharing of negligence. This frequently occurs in road accidents. One car pulls out of a side road and someone drives into it. Yes, they shouldnít have pulled out when they could see the other car coming but the other car may have been exceeding the speed limit.

Another fairly common problem is when you have a customer's vehicle stolen from your site. There are different types of negligence claims, based on:

  • Whether the car is locked/unlocked.
  • Whether the car is parked on the road, on the forecourt, in a compound.
  • What the level of security is at the site.
  • Whether the theft arose while no one is in attendance or if someone was inattendance w hether they were threatened to allow the theft to happen.
  • Whether they had left the vehicle in your care and control.
Clearly the % negligence on the dealerís part varies with the different circumstances.

Published: 08 Mar 2011

Comments

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Lawgistics Ltd (07/11/2014)
Dear Maxim Mazurov, Lawgistics only provides advice to businesses which operate within the motor industry. If you have a problem with a vehicle you have purchased or had repaired we recommend that you contact the supplying dealer / garage directly. Explain the issue face to face or over the telephone and if it cannot be resolved you may be able to obtain advice from one of our useful links for consumers... http://www.lawgistics.co.uk/consumer-information/looking-for-consumer-advice
Maxim Mazurov (07/11/2014)
My motorcycle burned down with an MOT garage and the owner of the garage claimed that he was underinsured and unable to reimburse me for the loss of the vehicle. I cannot afford to claim on my insurance (and get a "fault" claim) and stand to lose the value of my vehicle. Do I have a case for a negligence claim?



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