Duty of Care

A duty of care is a legal obligation to take reasonable care to avoid causing harm to another person in circumstances where the law recognises that obligation.

Duties of care arise in many familiar relationships. For example, drivers generally owe duties to other road users, employers may owe duties to workers, occupiers may owe duties to people entering premises, and healthcare professionals may owe duties to patients.

Establishing that a duty of care existed is only one part of a negligence analysis. It may also be necessary to consider whether the duty was breached, whether the breach caused the injury or loss, and whether legally recognised damage resulted.

What Does Duty of Care Mean?

A duty of care is the legal responsibility one person or organisation may have to take reasonable care for the safety or interests of another person.

The duty does not require every possible precaution to be taken, and it does not guarantee that no injury will occur. It requires the level of care that the law considers reasonable in the circumstances.

In some relationships, the existence of a duty is well established. In less familiar situations, whether a duty exists may require closer consideration of the relationship between the parties, the foreseeability of harm, the degree of control exercised and other relevant legal principles.

Why Does a Duty of Care Matter?

A duty of care is commonly the starting point when considering whether a person or organisation may have been negligent. Before asking whether reasonable care was taken, it is usually necessary to identify whether the law imposed a duty in the circumstances.

However, proving that a duty existed does not, by itself, establish negligence or an entitlement to compensation. It may also be necessary to establish:

• The nature and scope of the duty;
• That the required standard of care was not met;
• That the breach caused or materially contributed to the injury or loss; and
• That legally recognised loss or damage resulted.

Who Can Owe a Duty of Care?

Duties of care may arise between individuals, businesses, employers, professionals, public authorities and other organisations. Common examples include the following.

The precise content of a duty depends on the circumstances. The steps reasonably expected of a driver will differ from those expected of an employer, occupier or healthcare professional.

How Is a Duty of Care Determined?

In established categories of relationship, the existence of a duty may be relatively straightforward. In other cases, courts may consider a range of factors when deciding whether the law should recognise a duty and how far it extends.

Depending on the type of matter, relevant considerations may include:

• Whether harm was reasonably foreseeable;
• The closeness or nature of the relationship between the parties;
• Whether one party exercised control over the risk or circumstances;
• Whether the injured person was vulnerable or able to protect themselves;
• Whether responsibility had been assumed;
• The terms of any relevant legislation; and
• Whether recognising the proposed duty would be consistent with existing legal principles.

No single factor necessarily determines the issue in every case. The analysis is fact-specific and depends on the legal context.

What Is the Scope of a Duty of Care?

Identifying that a duty exists is not always enough. It is also necessary to identify the scope of that duty—that is, what risks and conduct the duty actually covers.

The scope of a duty may depend on matters such as the activity being undertaken, the risk of harm, the person’s role, the degree of control available and the precautions that could reasonably have been taken.

How Does Duty of Care Relate to Negligence?

Duty of care is one of several concepts commonly considered in a negligence claim. The questions are related but separate.

The existence of a duty does not automatically mean the duty was breached. Similarly, a breach does not automatically establish liability unless the required connection with the injury or loss is also established.

Relevant Queensland Legislation

Duties of care may arise under the common law, legislation or a combination of both. The legislation relevant to a particular matter depends on the type of claim and its circumstances.

The applicable legal framework should be considered in the context of the particular matter.

Frequently Asked Questions