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Duty of Care (ACT)

Duty of care is a common law legal concept. It applies in situations where a person or entity does something that might be expected to impact the safety and wellbeing of another person or entity. In this situation, a duty of care is owed towards all persons who may reasonably be expected to be affected. Where a party fails to comply with the requisite level of duty of care, they are said to have been negligent. Where the failure causes harm, the harmed party may be able to make a claim for damages and/or other relief.

Duty of Care in Legislation

In the Australian Capital Territory (ACT) the concept of duty of care is enshrined in legislation in the Civil Law (Wrongs) Act 2002.

This Act defines harm as including:

  • Personal injuries;
  • Property damage; and
  • Financial or economic loss.

The Act provides that the level or standard of care that should be exercised by a party to ensure they are not liable for damage caused by the harm is:

“that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.”

Personal injuries

If you have suffered a personal injury as a result of a lack of care taken by an individual or entity, you may have a claim for damages. Personal injuries can include mental as well as physical injuries. Common situations where an individual or entity may owe you a duty of care include the following:

  • Duty of care in a workplace;
  • Duty of care owed by the government in public spaces such as in parks or on roads;
  • Duty of care owed to you within spaces owned by corporate entities such as shopping centres or theme parks;
  • Duty of care owed to you by a company which produces or manufactures a product to ensure it is safe for use or consumption;
  • Duty of care owed to you by drivers on the road when you are either another driver or a pedestrian.

There are a few pieces of additional legislation that apply to workplace accidents in the ACT. These are the Workers Compensation Act 1951 and the Safety, Rehabilitation and Compensation Act 1988. You may be entitled to claim under one of these pieces of legislation in addition to under the more general Civil Law Wrongs Act (2002). This will depend on who was your employer and how they employed you at the time when you sustained your injury.

Property damage

Some examples of where a person may suffer property damage as a result of a breach of duty of care include:

  • A wall or part of a building collapses due to the negligence of the builder who constructed it; or
  • Personal property of a tenant is damaged due to a landlord’s failure to repair a fault with the property, e.g. water damage due to a ruptured drainpipe;

Financial or economic loss

Some examples of where a person may suffer financial or economic loss as a result of a breach of duty of care include:

  • A person becomes incapacitated and cannot work or earn an income as a result of a personal injury; or
  • An accountant or financial advisor gives a person negligent advice and, as a result, they lose money due to how they have arranged their financial affairs.

Limitations of liability for duty of care

Under the Limitation Act 1985, a person generally has six years from the date that loss is sustained to bring a claim relating to the breach of a duty of care. However, the limitation period is shorter for claims relating to personal injury. Under the Limitation Act, a person has three years from the date of the personal injury in which to make a claim for damages and five years from the date of the personal injury if it arose from a motor vehicle accident.

It also should be noted that the Civil Law Wrongs Act 2002 provides for situations where childhood abuse (physical or sexual in nature) has caused damage. It does not matter when this abuse occurred. This means that there is no limitation period for bringing a case to court relating to childhood sexual abuse.If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Kathryn Sampias

This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

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