Duty Of Care

Duty Of Care

Duty of Care

When a party has not taken reasonable steps to avoid injury or damage to others, they breach their duty of care and may be held liable for a negligence damages claim.

Find out more about your legal obligations, what constitutes a duty of care, and how negligence can be determined.

Let’s take a closer look.

What is Duty of Care?

A duty of care is the legal or moral obligation to protect the well-being and safety of others. Failing to do something reasonable or not taking steps to avoid causing harm, which results in another person’s injury, loss, or damage, is negligence.

Duty of care involves not harming others through a person’s actions or inactions.

When a duty of care has been breached, resulting in a person suffering an injury, there may be a legal basis for a claim for damages or compensation.

How is Negligence Determined?

The law states that a person must take reasonable care not to cause foreseeable harm to others or their property; this is called the law of negligence. Before a person can be deemed negligent, four factors need to be satisfied. Duty of care, breach, and causation. A claim for damages is the final stage in a negligence claim.

Was There a Duty Of Care Between the Respondent And Applicant?

The first step is to prove that there was a duty of care relationship between the respondent and the applicant. There are several relationships where a duty of care exists. A teacher, for example, owes a duty of care to their students, and the driver of a vehicle owes a duty of care to pedestrians and other road users. Other relationships include;

  • Doctors to their patients
  • Employers to their employees
  • Owner of land to their tenants
  • Teachers to their students
  • Manufacturer to consumers
  • Road Users to others using the road
  • Government body to members of the public using public property

The Civil Liability Act states that a duty of care does not exist in some circumstances, such as in emergencies, a rescuer or doctor providing help, or good samaritans providing food for a charitable purpose, they can not be held liable as long as their actions were not reckless.

Was The Duty Of Care Breached?

Once it is established that a duty of care was owed to the applicant, they must prove that the defendant breached that duty of care. The decision about whether a breach has occurred will focus on what is considered “reasonable” and if the defendant provided less than the standard expected.

The court will look at the standard of care and what is expected under the circumstances to establish that a breach has occurred. For example, the respondent acted unreasonably, the risk was foreseeable and posed a substantial risk of harm, and did not take precautions against the risk.

A court will state that a reasonable person, under the same circumstances, will have acted to avoid foreseeable harm.

Was The Injury Caused Due To The Breach?

The third factor which needs to be satisfied is causation. The applicant must prove that the personal injury suffered was a direct result of the breach of duty of care. To breach their duty of care is when precautions were not taken against the risk and failing to do something that a reasonable person would.

Did The Applicant Suffer Any Damage Or An Injury?

Under Public Liability Law legislation, if an injury has occurred due to another party breaching their duty of care, a person is entitled to claim compensation or damages.

A personal injury compensation claim may include psychological and physical injury; for example, a person may suffer a trauma-related disorder after a motor vehicle or workplace accident. Emotional trauma can significantly impact a person’s quality of life; a person will need to establish that their psychological injury was a direct result of the injury caused by a breach of duty of care.

Personal injury compensation claims resulting from failure to exercise a reasonable standard of care may include an economic and non-economic loss (which means financial as well as emotional. )

  • Pain and suffering from a physical and or psychological injury
  • Loss of earnings, including loss of future earnings
  • Current and future medical expenses
  • Loss of capacity to provide care for others, i.e. dependent children or parents

When deciding an appropriate amount to be paid for a personal injury claim, a court will consider; any financial loss, the injury’s severity and the impact the injuries will have on the person’s future.

The injured party must seek legal advice quickly, as there are strict time limits when claiming damages from personal injuries.

Duty of Care Breach Examples

Accidents can happen often, but if they occur due to someone’s negligence, they breach their duty of care, which means it may be possible to claim compensation.

There are expectations for individuals to behave or meet a certain standard of care and take reasonable measures to prevent any injuries to others in everyday circumstances, some common examples include the following;

  • Hitting another vehicle from behind – driver failed to keep a lookout for other road users
  • Slipping over on a wet floor in a shopping centre – centre management did not clean up the water on the floor
  • Tripping on an uneven footpath – council failed to maintain a public space adequately
  • Injuries caused by animals, such as dog attacks – dog owners were unable to keep their pets under control
  • Theme park accidents – the amusement venue operator did not adequately maintain the rides

Each example has a clear connection between the injury or damage and the breach of duty of care.

In some cases, it can become more complex, and establishing a direct connection between the injury and duty of care may not be immediately apparent. For example, if a person who slipped on a wet floor in a mall and suffered an injury to their shoulder had also injured the same arm in a sporting accident earlier that same day. A court must establish to what extent the breach or the previous event caused the injury.

Contributory Negligence

In some cases, a person may be responsible for their injury by not taking care of their safety, resulting in contributory negligence. This will affect their claim and the amount of damages they can receive, depending on the extent to which they have been found to contribute to the injury.

Several examples of contributory negligence include;

  • A person who had a car accident which was not their fault, but their injuries were more severe because they did not wear a seatbelt.
  • When individuals engage in high-risk activities and suffer a personal injury as a result
  • When an injured person did not keep a lookout for their own safety, or take reasonable care, and had a slip or fell as a result

Vicarious Liability

Vicarious liability is when one person or a company is held responsible for the negligent actions of another. This can occur in the workplace, where an employer is vicariously liable for their employee’s negligence.

Duty Of Care Legislation

In Australia, the duty of care falls under common law, which are laws created based on legal precedents by judges in a court. Each state and territory has legislation that governs duty of care and assesses negligence, for example, in the ACT, The Civil Law Wrongs Act, and in New South Wales, the Civil Liability Act 2002.

Summary

A duty of care is the legal or moral obligation to protect the well-being and safety of others. Failing to do something reasonable or not taking steps to avoid causing harm, which results in another person’s injury, loss, or damage, is negligence.

Duty of care involves not harming others through a person’s actions or inactions.

When a duty of care has been breached, resulting in a person suffering an injury, there may be a legal basis for a claim for damages or compensation.

The law states that a person must take reasonable care not to cause harm to others or their property; this is called the law of negligence. Before a person can be deemed negligent, four factors need to be satisfied. Duty of care, breach, and causation. A claim for damages is the final stage in a negligence claim.

A compensation claim for injuries may include psychological as well as physical injury. Emotional trauma can significantly impact a person’s quality of life; a person must establish that their psychological injury was a direct result of breaching the duty of care. Compensation claims resulting from failure to exercise a reasonable standard of care may include an economic and non-economic loss, such as pain and suffering or loss of earnings.

In some cases, a person may be responsible for their injury by not taking care of their safety, resulting in contributory negligence. This will affect their claim and the compensation they can receive.

FAQs

What is Duty of Care in Australia?

A duty of care is the moral or legal obligation to protect the well-being and safety of others. Failing to do something reasonable or not taking steps to avoid causing harm, which results in another person’s injury, loss, or damage, is negligence. A person must take reasonable care not to cause harm to others or their property; this is called the law of negligence.

Breaching their duty of care is when precautions were not taken against the risk and failing to do something that a reasonable person would.

Some common examples include;

Injuries caused by animals, such as dog attacks, where pet owners were unable to keep their pets under control.

Hitting another vehicle from behind, a driver failed to keep a lookout for others using the road.

What Legislation Covers Duty of Care NSW?

The law states that a person must take reasonable care not to cause harm to others or their property; this is called the law of negligence.

In Australia, the duty of care falls under common law. Common laws are created based on legal precedents by judges in a court. Each state and territory has legislation that governs duty of care and assesses negligence, for example, in the ACT, Civil Law Wrongs Act, and in NSW, the Civil Liability Act 2002.

What are the 4 Elements of a Negligence Claim?

If an injury has occurred due to another party breaching their duty of care responsibilities, a person is entitled to claim compensation or damages. There are four essential elements to a negligence claim;

  • There was a duty of care relationship between the applicant and respondent
  • The negligent party breached their duty of care
  • The other party has suffered an injury or damage due to the breach
  • A compensation claim for damages can be pursued

When deciding an appropriate amount to be paid for a personal injury claim, a court will consider; any financial loss, the injury’s severity and the impact the injuries will have on the person’s future.

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