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Duty of Care Meaning and How It Applies to Personal Injury Claims

Garbis Kolokossian

Written by:

Garbis Kolokossian

In the event that you have suffered harm as a result of a breach of duty of care, you may be entitled to compensation. Duty of care is a foundational legal principle that helps determine liability and the amount of compensation you’re owed.

This article will explain duty of care and its relevance to personal injury claims.

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What is the meaning of duty of care?

Duty of care refers to the legal obligation of individuals, corporations and entities to prevent foreseeable harm to those their actions or omissions could reasonably impact. Duty of care encompasses various forms of harm: physical, psychological, financial and material (property).

A duty of care breach can either be due to unintentional negligence or intentional malpractice. Both are subject to legal consequences if they directly result in harm or loss.

The legal framework for duty of care is outlined within numerous pieces of legislation, one being the Civil Law (Wrongs) Act 2002, which acts as a foundation for the duty of care principle in Australia. The criteria for a duty of care breach, as outlined by the legislation, is as follows:

  • The responsible person or entity did owe you a duty of care.
  • There is clear, documented evidence that they breached their duty.
  • This breach resulted directly in your harm.

 

In addition to outlining the criteria for a breach of duty of care, the Civil Law (Wrongs) Act 2022 also establishes a comprehensive framework governing the scope of duty of care, causation, the standard of care, defences and other fundamental principles related to civil wrongs.

Establishing a duty of care

The existence of a duty of care is often a matter of law. Courts have established general principles to determine whether a duty exists, such as:

  • Proximity: There must be a sufficiently close relationship between the parties – even if this is geographical in nature.
  • Foreseeability: It must be reasonably foreseeable that the defendant’s actions or omissions could cause harm to the plaintiff.
  • Fairness: It must be fair and just to impose a duty of care on the defendant.

Breach of duty

Once a duty of care has been established, the plaintiff must prove that the defendant breached that duty. This means that the defendant failed to act as a reasonable person would have in the same circumstances.

Causation

Even if the defendant breached their duty of care, the plaintiff must still prove that the breach caused their injuries. This involves showing a direct link between the defendant’s negligence and the plaintiff’s harm.

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How duty of care applies to common types of personal injury claims

The four most common causes of personal injury claims in Australia are medical negligence, motor vehicle accidents, public liability claims and workplace accidents.

While duty of care applies to all, each category requires distinct legal considerations and evidence to substantiate the claim.

Let’s look into what duty of care breaches look like for each personal injury claim category.

Medical negligence

The duty of care for medical professionals requires practitioners — in alignment with personal injury law — to take reasonable precautions to prevent loss, injury or further harm to their patients.

Common examples of medical negligence claims include:

  • Surgical errors
  • Misdiagnosis
  • Failure to obtain informed consent from patients.

Motor vehicle accidents

Referring to the standard upheld by all road users — whether by car, truck, bicycle or other form of transportation — to ensure reasonable care and prevent harm or injury to other road users.

Common examples of breaching the duty of care in relation to motor vehicle accidents include:

  • Driving under the influence,
  • Failing to stop at a red light
  • Speeding.

Public liability

Businesses or property owners who own public spaces have a duty to take reasonable steps to ensure the safety of those who use them.

Examples of public liability claims include:

  • Slips on poorly maintained floors
  • Fires caused by failures to address fire hazards
  • Injuries caused by falling objects.

Workplace accidents

Employers have a legal obligation to ensure a safe working environment for both employees and contractors.

Breaching workplace duty of care could take various forms, such as:

  • Failure to provide sufficient safety equipment or training
  • Tolerating workplace discrimination
  • Not promptly addressing potential safety hazards or concerns.

It’s important to acknowledge that these examples are generalisations and the nature of personal injury claims can vary greatly depending on the circumstances and specific state legislation. Therefore, seeking the guidance of expert legal advice is necessary.

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What are the compensation entitlements for a duty of care breach?

While the fundamental principles of duty of care are consistent across Australian states, specific compensation entitlements can vary depending on local laws and regulations. Once duty of care has been established, the compensation awarded will depend on the unique circumstances of your case.

However, there are several common types of compensation that are often available in personal injury claims due to a breach of duty of care:

  • Non-economic loss: The Act outlines a framework for determining compensation for non-tangible damages, encompassing pain and suffering and loss of quality of life. Additionally, the injury’s severity is taken into account when determining compensation, with more serious injuries warranting a higher recompense.

  • Economic loss: Compensation awarded for tangible losses, including loss of income, future earning capacity and other related economic losses. In evaluating past and future economic loss, various factors are brought into consideration, such as the injured person’s age and occupation.

  • Medical and other expenses: Relating to covering of medical treatments, rehabilitation expenses and other out-of-pocket therapeutic expenses incurred by the victim as a direct ramification of the injury.

  • Contributions by the injured person: The Act further stipulates that the court must consider any contributions made by the injured person towards their own injury, such as failing to wear a seatbelt in a car accident, or driving under the influence of alcohol, for example.

 

If you believe that you have been subject to a breach of duty of care, seek the advice of local personal injury solicitors. They can help you to understand the relevant duty of care and personal injury legislation in your state.

FAQs

Various parties can owe a duty of care, including employers, property owners, medical professionals, drivers, manufacturers, and government bodies.

The ‘reasonable person’ test is a legal standard used to determine if someone has breached their duty of care. It compares the defendant’s actions to what a hypothetical reasonable person would have done in the same situation. If the defendant’s actions fell short of what a reasonable person would have done, they may be considered negligent.

Yes, a duty of care can exist independently of any contractual relationship. It’s a legal obligation that arises from the circumstances of the situation, rather than from a formal agreement.

Contributory negligence occurs when the injured party’s own actions contributed to their injury. While it doesn’t negate the defendant’s duty of care, it can reduce the amount of damages awarded.

Yes – multiple parties can owe a duty of care in a single incident. For example, in a car accident, both drivers owe a duty of care to each other and to pedestrians.

How GMP can help

Our team of personal injury lawyers are dedicated to helping clients who have been injured due to negligence. Here are some ways we can help:

  • Assessing your case: A lawyer can evaluate the merits of your claim, determining whether you have a valid case and the potential for compensation.
  • Gathering evidence: Your lawyer will help gather evidence to support your claim, such as medical records, witness statements, and expert opinions.
  • Negotiating with the defendant or their insurer: A skilled lawyer can negotiate with the opposing party to reach a fair settlement without the need for a lengthy legal process.
  • Calculating damages: A lawyer can help you calculate the full extent of your damages, including medical expenses, lost wages, pain and suffering, and future losses.

 

If you’re considering filing a personal injury claim, our team at GMP Law are experts and can lead you in the right direction — ultimately toward the compensation you deserve.

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Case Summaries

Garbis Kolokossian

Author

Garbis Kolokossian

Partner

NSW-accredited public liability expert, Garbis Kolokossian, has 17 years of experience in personal injury law. He has secured more than $50M in compensation for clients in Public Liability, Motor Vehicle Accidents (MVA) and Wills disputes.

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Class Actions
Class Actions
At GMP Law, we have extensive experience in class action lawsuits, amplifying the voices of individuals who have experienced similar harms or losses.
Services
Services
Gerard Malouf & Partners manage cases for clients across all areas of Personal Injury Law, Inheritance Disputes and Superannuation Disputes.
About Us
Gerard Malouf & Partners have provided friendly, experienced legal advice to communities across Australia for over 35 years. Our Personal Injury Lawyers have taken on ten’s of thousands of cases and we are proud to have won billions of dollars for our clients.
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Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.
Resources
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.

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