Did someone else's negligence cause your injury?
A duty of care is a legal duty to take reasonable care not to cause harm to another person that could be reasonably foreseen. It is sometimes called the 'neighbour principle' because it's 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 public liability 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 act or behave with a lack of care. This is called foreseeability.
When is a duty of care breached?
A duty of care is breached when:
- a person is injured because of the action (or inaction) of another person; and
- it was reasonably foreseeable that such action (or inaction) would result in a risk of injury to the injured person; and
- the action (or inaction) causing the injury was 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.
Common examples of a breach in duty of care
Slips, trips and falls
A slip, trip or fall can occur to anyone, anywhere and much of the time, no one else is to blame. However, sometimes a person slips, trips or falls because of someone else’s carelessness. If the slip, trip or fall results in injury, it may be possible to seek compensation.
Some examples of common slips, trips and falls that may be compensable if they result in injury are:
- Slipping on ice cream that has spilled from a customer’s tray onto the floor of a food court in a shopping centre;
- Tripping on a cracked tile, one edge of which is raised above the level of the rest of the floor in an office building;
- Falling down a flight of concrete stairs that are wet, slippery and badly lit in a hotel.
Read more on our blog: The Grape of Wrath: Slips and Falls in Public Places
Landlords or occupiers of premises (the person who has control over a premises, if not the owner) have an obligation to take reasonable care to maintain and repair premises so as to avoid injury or damage to those who use the premises.
A landlord has a duty to ensure that a premises is reasonably fit for the purpose for which it is used and to keep the property in reasonably maintained. A landlord is not, however, required to ensure a property is at all times perfectly safe.
Dog bites and dog attacks
If a dog attacks or bites a person or other animal, the owner can be prosecuted for an offence and fined. Higher penalties apply in cases involving restricted breeds of dog or dogs previously declared dangerous. In extreme cases a prison sentence can be imposed, which can be as much as 10 years if the attack results in the death of a person. If the dog was with someone other than the owner at the time of the attack, both that person and the owner can be prosecuted. It's also a criminal offence to allow a dog to rush at or chase a person.
Read more on our blog: What is Australia's Most Dangerous Animal?
Theme park accidents
A person running an amusement venue or theme parks has an obligation to take reasonable care to maintain and repair the premises and equipment to avoid accidents resulting in injury or damage to those using the venue. An amusement venue operator will not be held liable for all accidents that occur on its premises, however. They can only be liable for an accident where they have been negligent.
The aviation industry is heavily regulated to ensure the highest safety standards. Aviation law is complex as it is governed by numerous international conventions as well as domestic legislation. Generally, a commercial air carrier is liable for any physical injury suffered by a passenger in any accident which takes place on board the aircraft or in the course of any of the operations of embarking or disembarking from the aircraft.
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 pain and suffering, and loss of enjoyment of life caused by physical injury, psychological injury or both
Past loss of earnings
Loss of future earnings or loss of earnings if your capacity to work is affected
Past and future medical and related treatment and care expenses
The past and future costs associated with the care you have been provided by loved ones on a voluntary basis (for example if a family member gives up their time to provide care and assistance to you while you are incapacitated)
Past and future damages for the loss of capacity to provide voluntary care to dependent(s) (for example if your injury prevents you from caring for someone who depends on you)
Seek legal help as soon as possible
Slater and Gordon’s Public Liability team have over 60 years of combined experience. We'll fight for you during the investigation process as we collect evidence in support of your claim - right through to the commencing of any necessary court proceedings. We'll support you every step of the way to achieve the best possible outcome.
We specialise in a variety of complicated public liability disputes and have a wealth of experience in every type of public liability claim.
We can help you by:
Letting you know whether or not you have a claim
Gathering evidence to prove fault and wrongdoing
Obtaining all your relevant medical material and medical reports to support your claim
Proving that your injury is significant enough to enable you to claim compensation for your pain and suffering
Helping you through the medical examination process
Thoroughly preparing your case and representing you at trial
Proving your case so you can receive compensation for your injuries
Advising you every step of the way so that you fully understand the process
No win no fee means that you will not be liable to pay legal costs unless your case is successful.