What is duty of care?
A duty of care is a legal duty to take reasonable care not to cause harm that is reasonably foreseeable to another person. It is sometimes called the neighbourhood principle because it is based on the idea that in order to live in a healthy and functioning community, we all have to take responsibility not to harm those around us.
In personal injury law, a person can only sue for injury or damage if someone breached a duty of care they owed to the injured person.
A duty of care does not arise in all circumstances. It can only arise where it is reasonable to expect that a particular person or class of persons might be injured or harmed if you behave carelessly. This is called foreseeability.
The following are some examples of situations where a duty of care usually arises:
- drivers owe this to other road users;
- doctors and other health care practitioners owe this to their patients;
- teachers owe this to their students;
- restaurants owe this to their customers;
- manufacturers owe this to those who use their products.
When is duty of care breached?
A duty of care is breached when:
- a person is injured because of the actions (or inaction) of another person; and
- it was reasonably foreseeable that such actions would result in a risk of injury to the injured person; and
- the actions causing the injury were unreasonable. This means that a reasonable person in the same position would not have acted in that way; and
- the risk of injury occurring was not an insignificant risk.
For example, if a driver disobeys a red light and causes injury to the occupant of another vehicle travelling through the intersection, the driver who disobeyed the red light has breached his duty of care to the injured person. This is because:
- the action of driving through the red light has caused the injury;
- it is reasonably foreseeable that disobeying a red light may cause injury to another person using the same intersection;
- driving through a red light is an unreasonable action since reasonable drivers within the community do not disobey red lights;
- the risk of causing injury to another user of the intersection if a red light is disobeyed is significant.
What could I be entitled to if a duty of care is breached?
When a duty of care is owed to a person, and it is breached resulting in injury or damage, the injured person can sue the person who breached the duty of care for damages which can include
- compensation for the pain and suffering
- medical and out-of-pocket expenses and
- economic loss resulting from the injury