When Have You Breached Your Duty of Care?

Table of Contents

Share at:

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.

Get your Full Time Employment Agreement legal document for free.

Hire your employees and protect your business with our full time employment agreement.

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.

Find the perfect lawyer to help your business today!

Get a fixed-fee quote from Australia's largest lawyer marketplace.

Share at:

Simplify creating legal documents today

Browse through Lawpath's AI tools which can be used to draft, review and refine legal documents today!

Related Articles

What is a Patent? (2026 Update)

A patent is a form of legal protection which grants you exclusive commercial rights to your invention. Find out more here.

How To Write A Business Plan (2026 Update)

A business plan gives your venture direction from the outset. Read this guide to find out how you write a business plan.

A Guide to Using Employment Agreements (2026 Update)

Employment agreements let you set out the terms of employment particular to the role you're hiring for. Find out how to use them here.

7 Critical Things To Know About Importing Goods From Overseas in Australia (2026 Update)

Are you thinking about importing goods from overseas? Read this article to find the legal requirements you need to know.

3 Reasons to Get a Registered Virtual Office Address (2026 Update)

Having a virtual office address for your company not only protects your privacy, but can also make your company more efficient. Read more here.

How to Start a Data Entry Business in Australia: Your Complete Legal Guide

Are you starting a data entry business in Australia? Build the right legal structure, registrations, contracts, and compliance from day one.