What is a Duty of Care in Queensland?

A duty of care is defined in the Civil Liability Act 2003 (CLA) as a duty to take reasonable care or to exercise reasonable skill (or both duties).

This legal obligation to take a reasonable standard of care to prevent foreseeable harm to another individual, is a vital element in the tort of negligence.

This tortious action enables an individual injured as a result of another’s negligent act of omission to seek compensation for their injuries.

A common issue in these actions is establishing whether a duty of care was owed by the defendant, to the plaintiff injured, as this can sometimes be unclear.

At common law, a duty of care will generally arise where the defendant should have foreseen that their conduct could result in injury to the plaintiff.

The infamous case of Donoghue v Stevenson [1932] AC 562 created the foundation for negligence law and established a duty of care existed between individuals.

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Established Relationships Where a Duty of Care is Owed

A number of categories of relationships are established to always have a duty of care owed by one to another. These include:

A road user to all other road users;
Doctor to patient;
Solicitor to client;
Public authorities to members of the public;
Manufacturer to consumer;
Occupier of a private premises to entrants;
Landlord to tenant, and more.

Non-Delegable Duty of Care

A ‘non-delegable duty’ occurs in relationships where one individual possesses a high degree of control, while the other has a special dependence or vulnerability.

This type of relationship means that liability for a breach of duty of care cannot be passed on to a third party or be avoided.

Relationships involving a non-delegable duty of care include:

Employer to employee;
Hospital to patient;
School to student.

Immunity From Duty of Care

Relationships immune from owing a duty of care include:

Barrister to client;
Rescuers (‘Good Samaritans’) assisting in an emergency.

Breach of Duty

Section 9 of the CLA sets out the elements required to determine a breach of duty.

(1) A person does not breach a duty to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.

The defendant’s conduct will be determined based on their knowledge at the time of the alleged breach of their duty, and relevant salient features.

Making a Claim

If you have suffered an injury caused by a party you believe owed a duty of care to you, you may be able to claim for damages in a civil action.

If you believe you have a negligence claim you should promptly seek legal advice.

Section 11(1) of the Limitations of Actions Act 1974 states that an action for the tort of negligence, where the plaintiff claims damages for personal injury, shall not be brought after the expiration date of 3 years from when the action arose.

If you require legal advice, please contact someone through our website today.