Duty of Care (WA)

Duty of care is a common law concept. In certain situations, one party owes another party a duty to take care to ensure no harm comes to the other person. Where a person does not take reasonable care, and the party to whom they owe the duty suffers damage, the person responsible may be liable to pay compensation to that party. The compensation payable may be for both economic loss, such as loss of income, and non-economic loss, such as pain and suffering caused by an injury. Under common law, there are certain relationships where it has been determined that a duty of care exists.

Duty of care relationships

A duty of care is owed in the following relationships:

• A landowner to their tenant;
• A doctor to their patient;
• A solicitor to their client;
• A government body as a landowner to members of the public on that property;
• A resident of private property to a visitor on that property;
• A person using a road to road users;
• A manufacturer of products to consumers of those products;
• A prison to a prisoner; and
• A rescuer to the person whom they are rescuing.

Non-delegable duty

There are a few other relationships where the level of control the party that owes the duty has, over the other party’s wellbeing, is considered so high that the duty of care cannot be assigned to another party. The duty of care that is owed in these circumstances is known as a non-delegable duty. These relationships are the following:

• A workplace to its employees;
• A hospital to its patients;
• A school to its students; and
• Teachers to their students.

No duty of care

There are also a few relationships where a duty of care will be found not to exist. These include:

• A barrister acting in court to his or her client; and
• A rescuer, including a medical professional, who is attempting to rescue someone in an emergency situation.

For other situations where one of the above relationships does not apply a court will consider the following in determining whether a duty of care exists.

1. Whether the harm suffered is a type that is compensable;
2. Whether the harm suffered was a reasonably foreseeable consequence of the defendant’s lack of care or negligence;
3. Whether there is a semblance to any of the already established relationships where a duty of care has been found to exist.

Relevant legislation

The legislation in Western Australia that governs the law relating to duty of care and negligence is the Civil Liability Act 2002. Among other things, this legislation provides protection from liability for negligence, or breaches of duties of care, to people that are acting as good samaritans. It also provides that apologies, if made, are not relevant to determining liability. This legislation also restricts the amount of damages that can be claimed for non-pecuniary loss, such as pain and suffering or bodily harm.

There are other relevant pieces of legislation for particular relationships where a duty of care is present. For workplaces, the relevant legislation is the Workers’ Compensation and Injury Management Act 1981. This legislation is primarily concerned with managing situations where workers have suffered an injury at work. This legislation sets up the body in Western Australia, that is responsible for regulating workplace health and safety, WorkSafe Western Australia. This body can serve infringement notices and penalties on workplaces that are not complying with health and safety laws. It can also assist with the resolution of disputes relating to workplace injuries. It also requires insurers operating in the workplace health and safety space to be approved.

For the resident or occupier to visitor relationship, the relevant legislation is the Occupier’s Liability Act 1985. This legislation requires occupiers of premises to take care that is reasonable to ensure that a person will not suffer injury or damage due to dangers which are due to the state of the premises. This Act provides that the duty of care owed may be lessened where a person enters the premises willingly assuming risks or with the intent to commit a criminal offence.

Limitation periods

The Limitation Act 2005 also provides time limits for bringing actions for breaches of duties of care or negligence. This Act provides a general limitation period of six years from the date when the cause of action arose. It provides that there is a limitation period of three years for claims relating to personal injuries. For actions relating to child abuse, no limitation periods apply.

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