All about duty of care in Victoria.

Duty of care meaning

A duty of care is a legal obligation to avoid doing something or failing to do something, that could possibly lead to the harm of another person.

It’s a legal obligation that we all have to take reasonable steps to not cause harm that might be ‘reasonably foreseeable’ to another person.

If a duty of care is breached, and as a consequence someone suffers injury or harm, then the person or company responsible for the breach can be found to be negligent.

Document outlining the meaning of duty of care

In what types of relationships is a duty of care owed?

There are many relationships where the law has established that a duty of care exists.

Some of the common ones are:

  • Employer owes a duty to their employees.
  • Road user owes a duty to other road users
  • Manufacturer of a product owes a duty to the consumers of the product.

How do I know whether a duty of care exists?

There is no exact formula to determine whether a duty of care exists in a particular case.

Whether one does exist is determined by considering the facts of the case.

The question of ‘reasonable foreseeability’ is a key consideration.

If a person knows, or should have known, that acting in a certain way, or failing to act, may cause harm to another person, this may give rise to a duty of care.

In determining whether a duty of care exists, courts will consider the following;

  • The nature of the relationship between the parties
  • The kind of harm suffered by a person
  • The extent to which control was exercised by one person

Standard of care

If a duty is owed to another, consideration must be given to apply what is called a reasonable ‘standard of care.’

What is a reasonable standard of depends on the particular circumstances of the case.

The court will ask the question: ‘what would a reasonable person or organisation do in the same position and having the same knowledge?’

For example, if it can be shown that a there’s a particular safety process when working with an item of machinery that is widely followed, but wasn’t followed by the company on this occasion, it will be likely that the company will be found to have failed to exercise a reasonable standard of care.

Breach of duty of care

When the standard of care is not met, the duty of care has been breached.

A person or organisation will be negligent if the harm that was suffered was foreseeable, and a reasonable person would have taken steps to ensure that the harm did not occur.

Does this make sense? It can sometimes be a difficult concept to understand.

Lets take a look at how ‘duty of care’ applies to injuries within the workplace.

Duty of care in the workplace in Victoria

Let’s simplify things with a duty of care example and see how duty of care applies specifically in the workplace.

Employers have a duty to provide and maintain a safe workplace.

Employers need to take reasonable care to not harm their employees where there is a reasonably foreseeable risk of injury.

A failure to do so can result in them being found negligent if an employee suffers an injury.

That being said, employees also have a duty to take care of their own safety and that of others.

They also have a duty to comply with their employers occupational health and safety measures.

Negligence and duty of care in the workplace

Duty of care at work

In order to establish that a person or organisation failed to exercise reasonable care, you must satisfy the following elements;

1. That a duty of care is owed:

Employers owe employees a duty duty of care.

They need to take appropriate steps to prevent harm to their employees that may be considered reasonably foreseeable.

2. That the duty of care was breached by the employer:

An employer can be deemed to have breached their duty of care by failing to take steps to keep their employees safe from harm.

As mentioned above, when considering this question, the courts will consider what was reasonable.

That is, what a reasonable organisation or person would have done in the same circumstances.

And, whether those steps would have minimised or eliminated the risk of injury to their employee.

It’s important to note that the risk must’ve been reasonably foreseeable.

This means that a reasonable person or organisation could possibly have anticipated that there was a risk.

As an example, lets say you work in a timber mill. There’s a particular piece of plant equipment that’s dangerous. The employer has provided an adequate amount of training and instruction as to how to operate the equipment safely. During the course of your employment, you suffer injury while working with the equipment, as a result of completely ignoring the training you had received.

In this instance, although you suffered injury, it may be difficult to argue that risk to you was not reasonably foreseeable. 

When assessing whether a person or organisation has breached their duty of care, the following matters need to be considered;

  • How significant a burden it would be on the organisation or person to avoid the risk.
  • How great the risk was
  • The likelihood of the accident occurring,

3. That you suffered injury as a consequence of the breach:

It needs to be demonstrated that as a consequence of the action or inaction, you suffered injury.

Basically, you need to show that the injury would not have occurred had it not been for the action or lack of action.

If another employee is responsible for my injury, how can my employer be responsible?

There is a concept called vicarious liability which means that employers can be held responsible for the acts and omissions of their employees.

Even if an employee acted improperly, the employer can can be considered vicariously liable for any damage that employees action or inaction may cause.

Duty of care and vicarious liability

What if I contributed to the injury in some way?

The concept of contributory negligence needs to be considered.

Did your actions in some way contribute to the injury you suffered?

If you are in some way responsible, the amount of compensation that you are paid will be reduced.

If you have been injured at work and there is a breach of duty of care, you can sue for negligence in the workplace.

You can be compensated for:

  • Pain and suffering
  • Loss of earnings.

Pain and suffering

Pain and suffering has been discussed in detail here.

In order to assess pain and suffering compensation, in a general sense what happens is a before and after picture of your life needs to be considered.

That is – how were you before the injury, how are you now and how are you likely to be in the future.

The greater the difference between your before and after picture, it’s likely the greater the pain and suffering consequences in your life are.

Typically, the following areas will be considered;

  • Impact on your ability to perform recreational activities
  • Enjoyment of life
  • Impact on social activities
  • Ability to perform household tasks
  • Ability to be perform self-care
  • Sleep
  • Mobility,
  • Cognitive function
  • Psychological distress,
  • Community standards
  • Loss of earnings

Economic loss

Economic loss or loss of earnings is compensation for any loss of earnings that you may have suffered as a consequence of the employees breach of duty an injury that you suffered. This involves assessing what you were earning before the injury and comparing that to what you are now earning and what you are likely to and into the future. Future.

Please keep in mind that the information contained on this page should not be considered legal advice and no content on this site should replace the need to obtain advice tailored to the specific facts of your case. The facts of a case can significantly alter the advice that can provided. This site only provides general advice. Read more here.

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To contact Michael or Peter call 1800 746 442 or email [email protected]

Written by the Work Injury Site team