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Duty of Care

The term ‘duty of care’ refers to the legal obligation to take reasonable care not to injure or harm another person. This extends to personal injury or death, damage to property, and economic loss.

If a person fails to exercise reasonable care they will likely be found negligent and therefore liable for the injury or harmed sustained.

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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.

Would you like assistance with your claim?

Complete our free, no obligation confidential case assessment form and we’ll get back to you within 24 hours.

Alternatively, we are available to talk by phone and email. Please contact our experienced accredited specialist personal injury lawyers to find out how we can help.

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Kimberly B.
23:14 14 Feb 24
Mathew is very knowledgable and has been of great assistance to me. All the staff are friendly and helpful. I'm so happy I found this firm.Thank you Mathew and team for your great work in my case.... I am 100% happy with what you achieved for me.read more
Julie M.
10:16 16 Jan 24
My last stage of Workers compensation claim was managed by Emma Perkins, Natasha Stojanovic, Rebecca Dunshea and Kelli Robinson at Garling and Co. Lawyers who went the extra mile with their service... from the beginning to the end of 3 years of my case. I have become very anxious with almost everything after a workplace injury and a lot of times I probably ask more questions than I need to, but Emma Perkins always finds clear answers to my questions in a short time and explains to me patiently even using her mealtime or between her meeting and make me feel that I have been very well take care and supported. I am so grateful and extremely satisfied. The excellent service, attitude, and culture of Metthew Garling and his team are second to none with a very high success rate. If you going to battle with your workplace injury for a short or long period, you are better off with Garling and Co. lawyers who are able back you up every step of the way. I strongly recommend it to anybody who needs their service like me. Julieread more
patrick P.
01:46 19 Dec 23
I like to say that I had a very wonderful experience,And the support, and also understanding with all my requests,I could not ask for a better team!Thank you Emma and also her assistant Rebecca... thank youread more
Kazi H.
13:38 13 Dec 23
Work cover fund is GOVT’S money but insurer think that it is from their 14th generation. So only they can have it. Not only that, people from the work, IME doctor from insurer, back to work... coordinator from work, Rehab provider from any side push the worker as hard as possible that the worker (doesn’t matter how the workers mental or psychical condition) either go back to his pre injury duty or leave the job.More over on that very bumpy any difficult journey some of them only treat the worker as a MONEY MAKING MECHINE .in some point worker feels like, no rooms to breath. On that moment need someone to support legally, someone to care, someone to relive.On my case I believe that, somehow, I manage to make my God happy. That’s why God sends me to Matthew Gerling and his team Allison, Rebecca and Nathan, and all of GARLING & co Lawyers.I am not good enough in English, can’t express my gratitude.Matthew, Allison, Rebecca and Nathan, please accept my appreciation and pass it to others.read more
Carol L.
01:32 29 Nov 23
Professional, understanding and friendly
Sean G.
23:21 14 Nov 23
Matthew Garling and everyone I spoke to at Garling and Co were kind, caring and compassionate. They were sensitive to my psychological condition and were patient in explaining everything to me, so... that I clearly understood the legal process. I am exceptionally grateful for the settlement outcome that Garling and Co obtained for me. Many thanks.read more
waqas A.
08:33 13 Nov 23
Great Experience with Garling & Co. Matthew explained everything in detail during the first appointment. Allison, Nathan, Rebecca and the staff have been extremely helpful. Thank You to the team and... lawyers at Garling & Co. for making the long process easy for me and getting an excellent outcome for my compensation claim.I would highly recommend Garling & Co. Lawyersread more
Saskia L.
21:42 08 Nov 23
The world of workers compensation is long, hard and confusing, but Emma and Rebecca at Garling & Co always treated my case with kindness, respect and understanding. No question was ever silly and... they always had time to make sure I knew what would happen next and how we could best prepare. I am so thankful for their expertise and could not have chosen anyone better to represent me.read more
Antonio P.
08:46 06 Nov 23
Thank you Matthew and his team for taking care of my case couldn’t ask for a better results and couldn’t have better team to do that thank you
Julie M.
00:40 06 Nov 23
Garlic & Co Lawyers have been wonderful, supporting me through some difficult times. With their assistance, positive outcomes were achieved. Many thanks to the Team.Julie

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