Duty of care in Victoria: who owes it?

Most people don’t think about ‘duty of care’ until something goes wrong. Maybe you have a customer who slips on a wet floor, or a worker who’s injured on a construction site. Sometimes the issue is less obvious. Your landlord might be ignoring your complaints about a broken railing. Or you might work with a professional who’s given you advice that’s caused you to have a financial loss.

In these situations, an important legal question is who was responsible for taking reasonable steps to prevent the harm from occurring. 

What is duty of care?

A duty of care is a legal obligation to take reasonable care in your actions (or omissions) to avoid the risk of causing harm to another person. It’s important because it helps society maintain a fundamental level of protection and safety.

When someone breaches their duty of care and this results in harm or loss to another person, it may be considered negligent. 

In Victoria, the tort of negligence is governed by the common law (another name for the law that comes out of cases that judges decide). Very simply put, the plaintiff will need to prove that the defendant owed them a duty of care, that they breached that duty and caused legally recognised harm or loss.

So, when do you owe a duty of care to another person? Or when does someone owe a duty of care to you?

Duty of care relationships

In certain circumstances, the law makes the duty of care relationship crystal clear. But there are many grey areas in our everyday interactions that require a court to decide. 

Let’s take a closer look. 

Established duty of care

There are some categories of relationship where it is well established at law that a duty of care exists. 

These can include:

• Teacher to student
• Employer to employee
• Doctor to patient
• Parent to child
• Landlord to tenant
• Occupier of premises to entrant
• Road user to road user
• Manufacturer to consumer

While these relationships typically imply a duty of care, individual situations could lead to a different result. For example, a school will generally owe students a duty of care during school hours and authorised activities. However, a court may find that the school was not responsible for an injury that occurred outside of its supervision or control, such as after a student had left the school grounds without permission.

Determining if a duty of care exists

When a situation falls outside established relationships, the court will have to decide whether a duty of care exists. 

There’s no exact formula for determining whether a duty of care exists. The court will consider a range of factors, including:

• The nature of the relationship between the parties
• Whether the risk of harm caused by the act or omission was reasonably foreseeable
• The kind of harm the plaintiff suffered
• The degree of control the defendant exercised
• Ethical and moral considerations
• Public policy considerations 

What is a reasonable standard of care?

If it’s established that a person does owe another person a duty of care in a particular situation, they must then exercise a ‘reasonable standard of care’. But what’s considered ‘reasonable’ varies, depending on the circumstances. 

To decide reasonableness, the court will consider what a ‘reasonable person in the same position with the same knowledge as the defendant would have done’.

When determining a reasonable standard of care, the court will consider many factors, including:

• The resources available to the defendant
• The level of risk inherent in the actions being undertaken
• The burden of taking precautions
• The utility of the defendant’s conduct

Practically, this might look like a supermarket owner who knows that there’s been a spill in a busy aisle on Saturday. They would ‘reasonably’ be expected to clean it up promptly or place warning signs around the area to reduce the risk of customers slipping and injuring themselves.

Similarly, if a finance advisor was following established practices widely accepted in their industry when giving advice, they would likely be considered to have exercised a reasonable standard of care. 

Breach of duty of care

So what happens when a reasonable standard of care is not met? First, this is considered a breach of the party’s duty of care, and if there was harm caused by the breach, then the person causing the harm will be considered negligence. 

However, not every accident or injury automatically amounts to negligence. The court will consider several factors, including whether the risk of harm was reasonably foreseeable, whether the risk was significant enough that precautions should have been taken and whether a reasonable person in the same situation would have acted differently to prevent the harm from occurring.

Causation of harm

To prove that harm was actually caused, the plaintiff (that is, the person who believes they were harmed) must prove that ‘on the balance of probabilities that the breach caused the harm’.

The harm itself is broad, and can include things like:

• Physical injury
• Financial loss, or inability to work
• Psychological harm
• Property damage
• Incapacity to care for dependents

The court will then consider whether the negligence was a necessary cause of the harm (known as factual causation) and whether it’s appropriate for the defendant to be legally responsible for the consequences that followed (known as scope of liability). 

Remedies for breach of duty

If the court ultimately believes that there’s been a breach of a duty of care and that breach caused harm to another person, it will likely demand that the defendant ‘remedy’ the harm. Usually, this means paying a monetary compensation.

To figure out how much the compensation should be the court will look at various factors, including whether there’s been any impact on the plaintiff’s ability to earn money, if there was a financial loss or personal injury, or if there was damage to personal property, among others.

Keep in mind that time limits and financial caps can also apply when seeking compensation.

Get support

Duty of care issues can arise in all kinds of everyday situations, from workplaces and schools through to medical settings, rental properties and public spaces. The legal principles behind negligence are well established in Victoria, but applying them to real-life circumstances can be a lot more complex. Questions around what was ‘reasonable’, whether the harm was foreseeable and who should ultimately be responsible can quickly become legally and factually complicated.

If you believe you’ve suffered harm because another person or organisation failed to take reasonable care, or you’re facing allegations that you breached a duty of care yourself, it’s important to obtain legal advice early.

If you need legal support around your or another person’s duty of care, please reach out to the Armstrong Legal team today.