Last updated 16 August 2016     This chapter is currently under review.

At common law a duty of care will generally arise when the defendant should have foreseen that their conduct could result in injury to the plaintiff (see Donoghue v Stevenson [1932] AC 562).

There are recognised categories of relationship which give rise to a duty of care:

  • landlord to tenant
  • doctor to patient
  • solicitor to client
  • public authority to a member of the public such as a road user or entrant to a public area
  • occupier to entrant of private premises
  • road user to road user
  • manufacturer of goods and supplier of services to a consumer
  • prison authority to prisoner and detainee
  • victim to their rescuer.

In some cases where the defendant has a high degree of control over the risk and there is either a special dependence or special vulnerability on the part of the plaintiff, the defendant will be said to owe a ‘non-delegable duty’. This means the defendant cannot escape liability by passing on the duty to take care for the plaintiff’s safety to a third party.

The following relationships are recognised as giving rise to a non-delegable duty of care:

  • employer to employee
  • hospital to patient
  • school and teacher to student.

Some relationships are recognised as giving rise to immunity from a duty of care:

  • a barrister acting in circumstances intimately connected to a case in court
  • a rescuer who goes to the aid of another person in an emergency situation, including a doctor rendering emergency first aid.

Sometimes, injuries can occur in circumstances outside of any recognised category of relationship giving rise to a duty of care. In these novel cases, the court will apply the following principles in determining whether a duty of care is owed:

  • The kind of harm suffered by the plaintiff must be recognised as being compensable and an infringement of a legally recognised right.
  • The harm must have been a reasonably foreseeable result of the defendant’s negligence.
  • The court will then draw analogies with any established category or categories of duty and, through a process of induction and deduction, apply the factors which are relevant to those established categories to the case at hand (Sullivan v Moody [2001] 207 CLR 562).

Breach of duty of care

The High Court laid down the test to determine whether a defendant has breached the duty of care in Wyong v Shirt (1980) 146 CLR 40. The test requires the following questions to be answered:

  • Would a reasonable person in a position of the defendant have foreseen a risk of injury to the plaintiff or the class of persons to which the plaintiff belonged arising from their conduct?
  • What would a reasonable person have done in response to that foreseeable risk?

The court must always judge the defendant’s conduct in light of what was known to the defendant at the time of the alleged breach and without the benefit of hindsight.

The common law test has now been adopted into s 9 of the Civil Liability Act 2003 (Qld) (Civil Liability Act) and s 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act), which provide that a person does not breach a duty to take precautions against the risk of harm unless:

  • the risk was foreseeable
  • the risk was not insignificant
  • a reasonable person in the defendant’s position would have taken some precaution.

In deciding whether a reasonable person would have taken precautions, the court must consider:

  • the probability of harm occurring
  • the likely seriousness of harm
  • the burden of taking precautions to avoid the risk of harm
  • the social utility of the activity that creates the risk of harm.

Sections 10 of the Civil Liability Act and 305C of the WCR Act also give further guidance to a court in determining the standard of care.

Factors which may serve to lower the standard of care owed by a defendant are:

  • if the conduct took place in circumstances of emergency
  • if the defendant is a child or a person under a disability.

Similarly, a higher standard may be owed in certain circumstances if:

  • the defendant holds themselves out as having special skills, knowledge or expertise
  • the plaintiff is a child and the defendant is an adult.

Intoxication on the part of the defendant does not lower the standard of care owed by the defendant to others. Intoxication on the part of the plaintiff does not mean the defendant owes a lower standard of care.