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Duty of Care (Vic)

A duty of care is a legal obligation to avoid doing things that could foreseeably cause harm to another person. A breach of a duty of care amounts to the tort of negligence if it leads to harm to a person. In Victoria, negligence is governed by the Wrongs Act 1958, and the common law. While in some circumstances it may be clear whether or not a person owes a duty of care to another, in other situations it is not clear.  

Established duty of care relationships

There are some categories of relationship where it is well established at law that a duty of care exists. When a situation falls outside of established duty of care relationships, a court must determine whether such a duty existed. 

Established duty of care relationships include:

  • Teacher to student;
  • Employer to employee;
  • Parent to child;
  • Occupier of premises to entrant;
  • Road user to other road user;
  • Manufacturer to consumer.

Does a duty of care exist?

There is no exact formula for determining whether a duty of care exists in any given situation. Whether a duty exists is determined by courts with regard to the question of what is reasonably foreseeable and to the level of proximity between the parties and public policy. 

If a person knows or should know, that their actions may cause harm to another person who is not able to protect their interests, a relationship of proximity exists that gives rise to a duty of care. A duty of care can be denied on public policy grounds if the court considers that finding it to exist would not be fair.

When courts are determining whether a duty exists they consider:

  • The kind of harm the plaintiff suffered;
  • The degree of control the defendant exercised;
  • The nature of the relationship between the parties;
  • Ethical and moral considerations.

Standard of care

If a party owes a duty of care, it must use a reasonable standard of care. What is reasonable varies depending on the circumstances. The court will ask ‘what would a reasonable person in the same position and having the same knowledge as the defendant, do?’

If a defendant followed an established practice that is widely followed across the sector they were operating in it is unlikely that it will be found to have failed to exercise a reasonable standard of care.

The court will also consider other factors when determining the standard of care that needed to be applied. These include the resources available to the defendant, the level of risk inherent in the actions being undertaken and the utility of the defendant’s conduct

Breach of duty of care 

When a standard of care is not met, there has been a breach of duty of care. The defendant will be guilty of the tort of negligence if the risk was not far-fetched, the harm suffered was foreseeable and a reasonable person would have taken steps to ensure the harm did not occur. 

Remedies for breach of duty

When a person sues another person for a breach of a duty of care, the most common outcome is the court granting an award of monetary compensation. The amount of monetary compensation will be assessed based on the following considerations:

  • The effect on the plaintiff’s ability to earn money;
  • Any personal injury;
  • Any financial loss suffered;
  • Any damage caused to personal property;
  • Whether the plaintiff was contributorily negligent (ie contributed to his or her own harm).

If you require legal advice in a civil law matter or in any other legal matter, please contact Armstrong Legal. 

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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