You might have heard of the phrase ‘duty of care’, but don’t understand the legal meaning behind it, or how it may be applicable to your own life.
Duty of care is a common law legal concept and is an essential part of proving a claim of negligence against another person or entity. The principles of establishing negligence applicable in Victoria nowadays are detailed in the Wrongs Act 1958 (Vic), but have their roots in English and Australian common law.
A duty of care is owed where there is a risk that is foreseeable, is not insignificant, and in the circumstances, where a reasonable person in the person’s position would have taken those precautions. In determining whether a reasonable person would have taken precautions against a risk of harm, the Court considers a number of factors.
There are many situations where you owe others a duty of care to take reasonable precautions against risks that may injure another person.
Duty of Care when driving
When driving there is a foreseeable and not insignificant risk that if you do not take reasonable precautions, you could injure other drivers or pedestrians. You therefore have a duty of care to other road users and pedestrians in the way you operate your vehicle.
If you breached this duty by acting in a manner that was not reasonable, such as texting on your phone while driving, failing to give way, or to keep a proper lookout, or drink driving, you would be held negligent for any injuries caused.
In Victoria Claims in negligence for motor vehicle accidents are made out under the Transport Accident Act 1986 (Vic). This legislation provides that in most cases, negligent drivers are indemnified by the Transport Accident Commission (TAC), subject generally to the motor vehicle being registered or the accident occurring on a Victorian road.
This means that even if a negligent driver who causes injury to another does not have the financial means to pay compensation, a claim for damages in negligence will be paid for by the TAC.
Duty of Care in the workplace
Under the Occupational Health and Safety Act 2004 (Vic) an employer must as far as is reasonably practicable, provide and maintain for employees a working environment that is safe and without risks to health.
This includes providing or maintaining systems of work and adequate facilities, so far as is reasonably practicable, that are safe and without risks to health, and to provide instruction training or supervision to employees to enable them to work in a safe manner without risks to their health.
If you are injured due to an unsafe system of work, inadequate facilities, or due to lacking instruction, training or supervision, your employer may have breached their duty of care to you, and you could have a claim against them for damages in negligence.
Further, an employer is vicariously liable for the actions of their employees which are done in the course or scope of employment. Therefore, if you are injured at work by the actions of another employee, you could have a claim against the employer in negligence.
A claim for negligence due to a workplace injury is brought under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
Duty of Care when supervising others
When others are in your direct care and supervision, such as supervising young children who are playing in a pool, you owe them a duty of care as there is a foreseeable and not insignificant risk of harm occurring if you do not take reasonable precautions.
If you decided to leave young children playing in a pool unattended to go and watch television, and one of the children is injured as a result of you not supervising them properly, you have breach of your duty to adequately supervise them. If this lack of supervision led to them suffering an injury, a right to claim for damages would be established.
Certain breaches of a duty of care can lead to criminal negligence or other criminal charges under the Crimes Act 1958 (Vic), as well as civil liability under the Wrongs Act 1958 (Vic).
Duty of Care for landlords and tenants
A landlord of a premises is under an obligation to maintain or repair the premises and owes a duty to take reasonable care to see that any person on the premises will not be injured by reason of the state of the premises.
Similarly, the current occupier of a premises also has the same duty.
In determining whether a duty of care has been breached, numerous factors are considered including the gravity and likelihood of the probable injury, circumstances of entry onto the premises, and the burden of eliminating the danger compared to the risk of danger to the person.
Duty of Care for hospitals and medical clinics
A hospital or medical clinic owes a duty of care to their patients in the provision of medical treatment. As a medical professional, the standard applied is what could reasonably be expected of a person possessing that skill at the time, based on what is widely accepted by a significant number of respected practitioners in that field as competent professional practice in the circumstances.
If the hospital or medical clinic fell below this reasonable standard in their treatment of you, and the breach of their duty caused you injury, you could have a claim for damages in medical negligence against them under the Wrongs Act 1958 (Vic).
Important considerations surrounding Duty of Care
The Complexity
While these are some of the examples of where a duty of care is owed, and where a claim for negligence could be made out, it is important to understand that in many circumstances proving negligence can be difficult. There are factors which can be complicated and impact on whether a claim will be successful, such as causation, awareness of risk, and contributory negligence. Very few cases are entirely straightforward from a legal perspective, and even if they are, there remain other issues with respect to quantifying a claim.
Limitations
Injury thresholds
There is also the requirement that in order to bring a claim for pain and suffering damages in negligence, the injuries must be stable and have reached a sufficient level of impairment of the person. The criteria assessed is different based on whether the injury is physical or psychological, and is a motor vehicle accident, a workplace injury, public liability, or medical negligence. These thresholds are complex, and apply variously depending on the injury type and circumstances.
Time limitations
There are also important limitations dates in bringing a claim for negligence depending upon the legislation the claim is brought under. If claims are not brought within this time, they can be completely barred or only be made under application to the Court with special circumstances.
- Workplace injury time limitation: For workplace injuries the limitation period is 6 years from the date of injury to bring a common law claim for damages in negligence.
- Motor Vehicle Accidents time limitation: For motor vehicle accidents the limitation period is 6 years from the day of injury for adults, and for children it is by the time they turn 24.
- For most other injuries: The limitation period is 3 years for adults and 6 years for children, from the date the injury was discoverable.
Get Legal Advice on Duty of Care and Negligence Claims
Negligence claims can be complex, and strict time limits apply. If you have been injured due to the fault of another person, business or organisation, it is important to seek expert legal advice as early as possible.
For motor vehicle accidents and workplace injuries, you can have entitlements to lump sum compensation on a no-fault basis, without any negligence of another party causing your injury.
The Personal Injury Lawyers at Arnold Dallas McPherson have extensive experience advising Victorians on duty of care and negligence claims, including motor vehicle accidents, workplace injuries, public liability and medical negligence.
We can assess whether you have a claim and guide you through the process of maximising your compensation entitlements, usually on a no win, no fee basis.
Frequently Asked Questions About Duty of Care in Victoria
Duty of care is a legal obligation to take reasonable precautions to prevent foreseeable and not insignificant risks of harm to others. It is a core element required to establish negligence under Victorian law.
A duty of care is breached when a person or organisation fails to act as a reasonable person would in the same circumstances, and that failure causes injury or loss.
No. Not every accident involves negligence. To succeed in a negligence claim, it must be proven that a duty of care existed, it was breached, and the breach caused the injury.
Individuals, employers, businesses, property occupiers, medical professionals, hospitals and government bodies can all owe a duty of care, depending on the circumstances.
Yes. Limitation periods apply and vary depending on the type of claim, such as motor vehicle accidents, workplace injuries, public liability or medical negligence. Missing these deadlines can prevent a claim entirely.
Given the complexity of negligence law, seeking advice from an experienced personal injury lawyer is strongly recommended to understand your rights and entitlements.
