Duty of Care (Qld)

A duty of care is a legal obligation to take a reasonable standard of care when doing acts that could foreseeably cause harm to someone else. Duty of care is one of the elements of the tort of negligence. If a person suffers injury as the result of another person’s negligent act or omission, the injured party is entitled compensation for their injuries. In some cases, it is easy to establish the existence of a duty of care, while in other cases it is less clear whether a duty existed.

Established duty of care relationships

There are recognised relationship categories where a duty of care is always owed. They include:

• Landlord to tenant;
• Doctor to patient;
• Solicitor to client;
• Public authorities to members of the public;
• Occupier of private premises to entrant;
• Road user to road user;
• Manufacturer to consumer;
• Supplier of services to consumer;
• Prison authority to prisoner;

Non-delegable duty

In relationships where one party exercises a high degree of control and the other party has a special dependence or a special vulnerability, the duty of care owed is non-delegable. This means that liability cannot be avoided by passing the responsibility on to a third party. The following relationships involve a non-delegable duty of care:

• Employer to employee;
• Hospital to patient;
• School to student.

Immunity from duty of care

Some relationships have immunity from duty of care. These include:

• Barristers conducting court work;
• Rescuers assisting in an emergency situation.

Does a duty of care exist?

When a person is injured due to another party’s act or omission and the relationship does not fall into any established category of duty of care relationships, courts must assess whether a duty of care was owed by asking the following questions:

• Was the harm a reasonably foreseeable result of the defendant’s negligence?
• Is the harm suffered compensable and an infringement of a legally recognised right?
• Can analogies be drawn with an established category of duty?

Was the duty of care breached?

In establishing whether a duty of care has been breached, courts consider the following questions:

• Would a reasonable person in the defendant’s position foresee a significant risk of injury arising from their conduct?
• What would a reasonable person in the position of the defednant do in response to that risk?
• Did the failure to do this cause or contribute to the injury?

The defendant’s conduct will be assessed based on their knowledge at the time of the alleged breach of their duty of care.

The legislation

In Queensland, the common law test for breach of duty of care has been codified in Section 9 of the Civil Liability Act 2003, which states:

(1) A person does not breach a duty to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, the person knew or ought reasonably to have known of the risk); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the defednant’s position would have taken precautions.

(2) In deciding whether a reasonable person would have taken precautions, the court is to consider:

(a) the probability of harm if care were not taken;

(b) how serious the harm is likely to be;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that gives rise to the risk of harm.

Principles relating to breaches of duty of care are also contained in Section 305C of the Workers Compensation and Rehabilitation Act 2003.

A defendant in certain circumstances may owe a lower duty of care, such as in an emergency situation or where the defendant is a child or a person under a disability. A person may owe a higher standard of care in other circumstances, such as where the defendant holds themself out as having special skills and expertise or where the plaintiff is a child and the defendant is an adult.

Can I make a claim?

If you have suffered an injury because of a person’s negligence, you may be able to make a civil claim for damages. If you think you have been harmed as a result of negligence you should seek legal advice as soon as possible.

Circumstances where a person may make a claim in negligence include:

• A driver went through a red light and collided with their car, injuring them or damaging their car;
• Their employer failed to ensure a safe work environment and they got injured as a result;
• Their child’s school failed to supervise their child and the child was injured;
• A doctor performed an operation without taking due care and the patient was injured as a result;