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When Have You Breached Your Duty of Care?

When Have You Breached Your Duty of Care?

You can only prove negligence if there has been a breach of duty of care. Read this article to discover how you can establish a breach of duty of care.

12th June 2019

In its most general sense, when a person acts in a careless way and causes an injury or harm to another person the careless person is usually held responsible for the resulting harm. The law of negligence however, mandates the establishment of a breach of duty of care in order to hold someone accountable for the injury.

Let’s consider a hypothetical case and use it to understand how the law of negligence works. Imagine that Peter’s car gets hit by another car driven by you. As a consequence, Peter suffers several spinal injuries. Can Peter sue you for damages? The answer seems obvious. Since, Peter was injured as a result of your driving it seems reasonable for Peter to be able to sue you. However, is it fair if Peter sues you just like that? People have accidents everyday – can they sue each other for every little incident? If they can then the courts would be overwhelmed with cases.

Luckily, before proving negligence and claiming damages, the court will consider a number of things. Firstly, it will assess whether you owed a duty of care to Peter. Then, the court will determine whether you breached your duty to take care and lastly, it will evaluate whether the damages or injuries suffered by Peter resulted directly from that breach.

This article will mainly focus on the second element of negligence: breach of duty of care. It will help you determine whether you have breached your duty of care.

When does a Breach of Duty of Care Exist ?

Once we know that a duty to take care exists, we must then establish that the duty of care was breached. A breach of duty of care usually exists when a person does something unreasonable or fails to do something reasonable. Back to the case of Peter and you. When determining if you have breached your duty of care, the court will consider whether or not, given the circumstances, you drove as a reasonable person would have.

How Does The Court Establish a Breach of Duty of Care?

As listed in the Civil Liability Act 2002 (NSW), the following elements must be satisfied in order to establish a breach of duty of care:

  • Risk must be foreseeable: the person accused of causing the injuries must have been aware of the risk or ought to have known of the risk.
  • Risk cannot be insignificant: the test for this element does not require the risk to be significant however, if the risk is an insignificant risk, then there will be no breach even though no precautions were taken. 
  • Reasonable person would have taken precautions: the person injured must prove that a reasonable person, in the same situation, would have taken precautionary measures.

However, for the last element of the test, the precautions that the court will consider reasonable may vary according to the circumstance.

  • The higher the seriousness of the harm, the more likely is it for a reasonable person to take precautions.
  • The more probable it is for harm to occur, the more likely it is for a reasonable person to take precautions.
  • The lesser the burden of taking precautions, the more likely it is for a reasonable person to take precautions.
  • Lastly, a reasonable person is less likely to take precautions if the potential benefit of the actions or inactions is greater than the risk of exposing others to harm.

Do I need a lawyer?

If you or someone you know have suffered an injury because of another person’s carelessness, it may be worth pursuing a potential legal claim. We do understand that the law of negligence can be complicated, and it may be difficult for you to assess the elements of breach of duty. We can help you connect with a knowledgeable and skilled personal injury lawyer who can help you determine if you have breached a duty to care.

You can also calculate the value of the personal injury claims using the personal injury claim calculator. Moreover, as an employer if you wish to exclude your liability for a breach of duty of care, you can do so through a contract with your employees or customers.

Don’t know where to start? Contact us on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest lawyer marketplace.

Anupa Dhital

Anupa is a Legal Intern at Lawpath, and is currently in her final year of studying Bachelor of Laws at Macquarie University.