Duty of Care

The law of negligence is contained in the Civil Liability Act 2002 (NSW) (CLA), and the CLA sets out three conditions that must be met for negligence to have occurred:

1. The risk was foreseeable, or the risk is something that the person should have known
2. The risk was significant
3. There was a failure to take precautions, where a reasonable person would have taken such precautions

In deciding whether the duty of care law was breached, the court will look at the link between the negligence and the harm caused, the probability that the harm would occur, the extent of the harm caused, the burden of taking precautions, as well as the unique duty of care relationship.

The type of relationships that are covered by a duty of care claim are extensive. For example, a duty of care exists between:

• Employer and employee
• Doctor/hospital and patient
• School and student
• Premises owner or occupier and persons on that premises
• Road user and other road user (pedestrians, bicycle riders, other motorists)

Common duty of care circumstances

While there are many duty of care relationships, some are much more common than others. In the following circumstances a duty of care exists at law:

Doctor and patient

The duty of care a doctor owes to their patients is very complex and exists in all doctor patient relationships. The duty of care in this relationship extends to and includes giving adequate advice, diagnosis and warning regarding risks, and outcomes and possible side effects. The duty of care also exists in the performance of surgery and other medical interventions.

There is also a duty of care between a hospital and its patients, and this duty of care requires that all hospitals provide their patient with reasonable medical care. Anything outside of this duty of care can be defined as medical negligence.

School and student

The duty of care owed in this relationship requires the teachers at the school, and the school itself to take reasonable care for the wellbeing and safety of the students under its control.

The duty of care in this relationship extends not only to physical wellbeing but also psychological wellbeing. For example, if a group of Year One students were not supervised at all during lunch break and a student was injured, the school would likely be found negligent as they did not provide adequate care and supervision for the children, who due to their immature age, need appropriate supervision.

Occupier of premises

The owner or lessor of a property has a duty of care to any occupants on its premises, (also known as occupiers liability). This duty extends to cover slips, trips and falls in venues such as hotels or clubs, shopping centres, and any other privately owned or occupied premises.

Therefore, if you were at your local shopping centre and you slipped on spilt milk on the floor and sustained an injury, it is possible that the supermarket had breached their duty of care to you, as they failed to provide an adequate system of inspection and cleaning of spills where the risk of serious injury was reasonably foreseeable.

Public Liability

Duty of care also extends to public liabilities. This includes injuries sustained in public parks, footpaths, trips on drainage pipes, roadworks, or man holes on public streets, or any other injury occurring on premises that is under the control of local government or other government bodies.

However, these cases are complex as the CLA provides extra protection to local government and government bodies. In order to establish negligence, you will have to prove that the government body had knowledge of the risk. For example, if you were injured by tripping on a footpath, in order to be successful in your negligence claim you would need to establish that the government body knew of the risk posed by the footpath. This could be established by proving previous complaints or injuries associated with the same fault.

As can be seen there are many different circumstances where a duty of care relationship exists, and not all of them can be listed here. All duty of care cases are different and the outcome depends on the circumstances of each individual case.

If you believe you have been injured due to someone else’s negligence, or you believe your injury was caused by someone who owed you a duty of care, it is advised that you consult an accredited professional in personal injury law as you may be able to recover monetary compensation, payment of medicals and treatment, and economic loss.

If you would like to discuss your potential duty of care claim, please contact Matthew Garling on (02) 8518 (02) 8329 9500 or mgarling@garlingandco.com.au.