What is the Duty of Care in Queensland?

You may be wondering, what is the duty of care in Queensland?

Depending on your position in the workplace or elsewhere, there is a good chance that you owe an established duty of care to at least one person!

Duty of care is a serious legal concept, and breach of duty of care can result in the other party pursuing legal action against you, so you must stay informed about your rights and responsibilities.

This article will outline the basics of duty of care and explain your rights and responsibilities in the matter.

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What is Duty of Care?

A duty of care is a legal obligation one individual has to another to prevent, or not cause, harm, or damage to them. It is a standard in negligence law and, in cases of negligence, is generally the basis for the case.  

What does the Law Say?

In section 9 of the Civil Liability Act 2003, the duty of care is established in further depth. It states that:

A person does not breach a duty to take precautions against a risk of harm unless—

1. the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
2. the risk was not insignificant; and
3. in the circumstances, a reasonable person in the position of the person would have taken the precautions.
4. 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)
5. the probability that the harm would occur if care were not taken;
6. the likely seriousness of the harm;
7. the burden of taking precautions to avoid the risk of harm;
8. the social utility of the activity that creates the risk of harm.

Concerning breach of duty, the Workers Compensation and Rehabilitation Act 2003 establishes the actions/behaviours that contribute to a breach of duty. It states:

In a proceeding relating to liability for a breach of duty— 

1. the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and 
2. the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and 
3. the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.

Types of Duty of Care

There are various forms of duty that are predetermined, meaning that in a relationship of the sort you are automatically responsible for the care of, or to be cared for by, the individual in question. These relationships include:

• Landlord to a tenant; and
• Doctor to a patient; and
• Solicitor to a client; and
• Manufacturer to a consumer; and
• Road user to all other road users; and
• Occupier of a private property to all other entrants; and
• Prisoner authority to the prisoner; and
• Victim to their rescuer.

Furthermore, some forms of duty, or duty of care breaches, are increased in severity.

This is due to the level of power of the carer and the higher reliance or vulnerability of the individual owed care in the matter.

These relationships include:

• Employer to the employee; and
• Hospital to the patient; and
• School teacher to school student.

These particular forms of duty of care are referred to as non-delegable.

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Does a Duty of Care Exist?

You may be wondering, does a duty of care exist in the matter I am involved in?

This is a great question to ask, and research, before delving too deep into the legal side of things.

When damage or injury is caused to an individual by the influence, or lack thereof, of another, the court must decide as to whether a duty of care is present, and in turn breached, in the matter.

They do this by applying a number of principles to the scenario.

These principles include:

• The damages/harm must have been foreseeable to a reasonable person as a result of the “carers” negligence;
• The damages/harm must have the ability to compensate for (compensable);
• The damages/harm must be an infringement of a legally recognised right;
• The damages/harm must be comparable to an established type of duty of care.

Was the Duty of Care Breached?

Now that you are aware of whether a duty of care is present, you may be wondering when said duty has been breached.

If you’re wishing to sue someone for negligence in the form of duty of care, or if you just wish to ensure you do not engage in a breach of duty of care, you must be away of the actions/behaviours that a courtroom will consider.

To evaluate whether a breach has taken place, you may want to first answer the following:

• In the position of the defendant, would a reasonable person have been able to foresee that their neglect would result in the damage that has taken place?
• How would a reasonable individual address this risk?
• Did the defendant’s failure to prevent said risk results in the damage that has taken place?

What is a “Reasonable Person”?

A large basis of the duty of care lies in the concept of a reasonable person. So, what is a reasonable person?

A reasonable person is a hypothetical individual of average judgement or ability. They have general risk assessment abilities and average intellectual ability, or IQ.

They also have a clear judgement and a general individual’s sense of self-protection or preservation, meaning they will avoid acting rashly or stumbling unknowingly into matters of danger or risk.

Key Takeaways

Duty of care is a serious responsibility, so it is important you take into account all information available to you.

If you are being sued for negligence in the matter of duty of care, it is wise to seek the assistance of a lawyer in order to keep your rights (and your funds) intact!

Been involved in an accident? Be referred to the best personal injury lawyers on the Sunshine Coast