Duty of Care (NSW)

A duty of care exists when a person or entity has a responsibility to take care to ensure the safety and wellbeing of another person or entity who is likely to be affected by their conduct. Where a duty of care is owed but not fulfilled, the person or entity owing the duty of care is said to have been negligent. Where a person suffers a loss due to someone’s negligence, they may be able to recover some of their losses.

A person suing for loss can claim economic, or non-economic loss. Economic loss can be a loss of income or other financial losses. Non-economic loss relates to a loss that is not financial – for example, pain and suffering in the form of a personal injury caused by the negligent act or omission.

Duty of care relationships

There are certain relationships where it is established that a duty of care is owed. These include:

• A landowner and the renter of the premise;
• A doctor and their patient;
• A solicitor and the person or entity receiving legal services from them;
• A government body to members of the public using property owned by it, e.g. a road or public area;
• An occupier of private premises to a visitor of those premises;
• A road user to others using the road;
• A producer of a product/s to a consumer;
• A prison authority to a prisoner; and
• A person being rescued and their rescuer.

Non-delegable duty of care

There are also a few relationships where the party that owes the duty of care has a high degree of control over the risk, and the party to whom the duty of care is owed is considered to be particularly reliant or vulnerable.

In these situations, there is a “non-delegable” duty of care. This means that the party that owes the duty of care cannot pass this duty on to any other party.

These relationships are:

• An employer and an employee;
• A hospital and a patient;
• A school and a student; and
• A teacher and a student.

No duty of care

There are also some relationships where a duty of care does not exist. These relationships are:

• A barrister in court to his or her client; and
• A rescuer, including a doctor, who goes to help someone in an emergency.

For other situations, the general principles of duty of care can be applied to determine whether a duty of care exists. In order to determine whether a duty of care exists and whether a claim can be made, a court will consider the following:

• What type of harm was suffered, e.g. whether it is compensable;
• Whether it was reasonably foreseeable that the defendant’s negligence could cause the harm suffered; and
• Whether the relationship between the parties is analogous to one of the already established categories of duty of care.

Civil Liability Act 2002

In New South Wales, the law of duty of care is enshrined in the Civil Liability Act 2002. This Act contains various provisions that stipulate how damages should be calculated for economic and non-economic loss. It provides this for some specific situations, including the situation where a child is born due to negligence.

This Act also provides special provisions for other situations where a duty of care is owed including:

• Duty of care owed by a prison to offenders in custody; and
• Duties owed by public authorities or other bodies to members of the public.

It also considers how intoxication can affect the duty of care.

This legislation provides protection from liability in certain situations. These situations include where a person is acting as a good Samaritan, a volunteer or providing food as a food donor.

It also provides that apologies, if made, are not relevant when determining liability.

Other relevant legislation

For duty of care issues arising in workplaces, the Work Health and Safety Act 2011 is also relevant. This Act provides that to ensure that a duty of care is met by a workplace, the workplace must do what is “reasonably practical” to ensure the health and safety of its workers. In doing so, a workplace is to take into account and weigh up various relevant matters including:

• The likelihood of a hazard or risk;
• The degree of harm that could be done;
• The knowledge about the hazard or risk and knowledge about ways of minimizing the risk;
• The availability of ways to minimize the risk; and
• The costs associated with minimizing the risk.

This Act, among other things, provides certain powers to the regulator of workplace health and safety in New South Wales – SafeWork NSW. This regulator enforces workplace health and safety laws but also provides advice on ensuring and improving workplace health and safety. It also provides licenses and registration for work that is potentially dangerous.

The Road Rules 2014 are also relevant to any person using a road in New South Wales.

Limitation on taking action

For personal injuries, a limit of three years from the date of the injury applies according to the Limitation Act 1969. However, for injuries suffered as a result of child abuse, there is no time limit for taking action.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.