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What is duty of care?
A duty of care is the legal obligation or responsibility to take all reasonable steps to avoid causing foreseeable harm to another person or their property.
A breach of duty of care is when that legal obligation to protect the wellbeing and safety of others is not upheld and somebody is injured or harmed.
To understand whether there has been a breach of duty of care, there are two important things to consider:
- What was the standard of care those responsible should have exercised?
- Did the conduct of those responsible fall below this standard of care?
Examples of a breach of duty of care:
- Being injured in a public place, such as a supermarket, retail store, footpath, theme park or private property, due to the negligence of those responsible for the public space. Slips, trips and falls are common examples.
- Being injured or harmed due to the negligence of your medical provider. Medical providers have a duty of care to use reasonable skill and judgement when examining, diagnosing, treating and advising their patients.
Legal significance of duty of care
When a duty of care owed to you is breached and you’re injured as a result, you may be able to claim compensation.
An expert personal injuries lawyer can help you prove that the person or party responsible for the duty of care was negligent, and they can be sued for damages.
What are my entitlements if I’m injured due to someone else’s negligence?
If you are injured due to a breach of duty of care, financial compensation for damages can cover things like:
- medical bills
- loss of earnings
- pain and suffering.
Speak to a personal injuries lawyer
If you've been injured due to some one elses negligence, it's important to get expert legal advice.
Get in touch with our team of experienced compensation lawyers today.
When does duty of care apply?
All employers have a duty of care to their workers. We all have the right to a safe workplace, which includes occupational health and safety protocols, PPE, regular maintenance of equipment, and protecting employees from discrimination and harassment.
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Professionals are responsible for taking all reasonable steps to protect their clients/customers/patients' wellbeing and safety. Depending on the profession, the duty of care can involve different things.
Some examples of duty of care in a professional relationship are:
- medical practitioners/healthcare workers to their patients
- teachers/schools to their students
- lawyers to their clients
- financial advisors to their clients.
There are many situations in our everyday lives where a duty of care might apply. Some of these include:
- shopping centres and theme park operators to visitors
- governments to visitors in public spaces (for example, footpaths, parks and roads)
- manufacturers or producers of goods to consumers
- landlords/owners of properties to tenants
- businesses and their customers
- drivers and other road users.
Duty of care responsibilities and obligations
Fulfilling duty of care
To fulfil all duty of care obligations, people or organisations must take all reasonable steps to prevent harm, avoid injury and ensure the safety and wellbeing of others.
This involves:
- Risk assessments: identifying potential risks and hazards that may cause harm to others and assessing their likelihood and severity.
- Implementing preventive measures: taking appropriate actions to eliminate or minimise potential risks and hazards. This can include introducing safety protocols, providing training and education, maintaining equipment and premises, and ensuring compliance with relevant laws and regulations.
- Monitoring and reviewing: it’s not a ‘set and forget’ process - regularly monitoring and reviewing the effectiveness of preventive measures, updating processes as needed, and staying informed about changes in laws or industry standards are required.
- Documentation and reporting: it’s important to keep records of all risk assessments, all safety measures implemented and any incidents (or near misses) that occur.
Legal liability
In Australia, duty of care is mostly governed by common law principles and statutory laws and regulations specific to certain industries or jobs.
Those responsible for a duty of care can be legally liable for any breach of their duty to prevent foreseeable harm to others.
If a duty of care is breached and harm or damages occur as a result, the responsible person or party may be subject to legal action and potential financial compensation claims.
Best practices for fulfilling duty of care
Tips for individuals
- Be aware of your surroundings and potential risks. Always take reasonable care to protect your own safety and the safety of others. This includes being attentive to hazards in public spaces, following safety guidelines, and reporting any concerns to the appropriate people or authorities.
- If injured, take photographs of where the injury occurred and report the accident to the appropriate authorities.
- Seek legal advice if you believe a duty of care has been breached and you have been injured or suffered harm. Our expert lawyers who specialise in work injuries, road injuries, public liability, medical negligence or other related areas of law will be able to explain your options clearly. We offer No Win, No Fee* and the first consultation is completely obligation-free, so it doesn’t cost anything to know where you stand. Contact us today.
Tips for businesses, organisations and other entities
- Establish a duty of care policy: Develop a thorough policy that outlines your commitment to fulfilling duty of care obligations. This policy should be communicated to all employees, stakeholders, and relevant parties.
- Do regular risk assessments: Identify and assess potential risks and hazards associated with your operations. This should involve consultation with employees and relevant experts to ensure a thorough understanding of the risks involved.
- Implement safety procedures and training: Develop and enforce safety protocols and procedures to address identified risks. Provide appropriate training and education to your employees to ensure they are aware of their duty of care responsibilities and understand how to mitigate risks.
- Maintain records and documentation: Keep detailed records of risk assessments, safety procedures, incident reports, and any actions taken to address any identified risks. This documentation can be vital in demonstrating that you have fulfilled your duty of care obligations.
Frequently asked questions about medical negligence
To assess whether a duty of care has been breached, the following factors are important to consider:
- Standard of care: Determine the appropriate standard of care that was owed to you based on the specific circumstances and the relationship between you and the party alleged to have breached their duty of care.
- Foreseeability: Assess whether the harm or damages suffered were reasonably foreseeable and could have been prevented by taking all reasonable precautions.
- Causation: Establish a direct link between the breach of duty of care and the harm or damages suffered. It must be demonstrated that the breach directly caused or substantially contributed to the harm.
To establish duty of care, the key elements include:
- a recognised legal relationship
- foreseeability of harm
- a standard of care that must be met
- a breach of that duty
- a direct link between the breach and the harm, and
- actual damages suffered because of the breach.
These factors collectively establish the legal obligation to take reasonable steps to prevent harm to others.
An example of a duty of care is when a supermarket has the legal obligation to protect all customers from hazards such as a slippery floor. If the floor is slippery and it has not been cordoned off or adequately signed to warn customers of the hazard, the supermarket is breaching their duty of care to prevent foreseeable harm to their customers.
Everybody has the right to feel safe at work. Employers have a legal responsibility to ensure the health, safety and wellbeing of their employees – this is their duty of care.
Keeping employees safe includes providing a safe working environment, implementing appropriate safety measures and procedures, providing necessary training, and monitoring and addressing any potential hazards or risks.
Employers must also always protect employees from discrimination, harassment, and any other harmful behaviours.
A care worker’s duty of care is to the individuals under their care. This includes healthcare workers, medical practitioners, disability support workers and aged care workers. They are responsible for the wellbeing, safety, and overall quality of care for the person or people in their care. This can involve providing appropriate medical attention, administering medication correctly, ensuring physical and emotional needs are met, and safeguarding from any foreseeable harm or abuse.
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