Duty of Care Tasmania (Tas)

A duty of care is the legal obligation to take care to avoid harming others. A person owes a duty of reasonable care to certain people but not to everyone. Some relationships have an automatic and undeniable duty of care, while in other circumstances, the courts must determine whether a duty of care exists in a relationship. Duty of care is also an element of the tort of negligence. A plaintiff must establish that the defendant owed them a duty of care to succeed in a negligence claim. If this duty is breached, resulting in damage, the plaintiff can claim compensation for their loss. This damage can be personal injury, but it may also be property damage or economic loss. In Tasmania, the Civil Liability Act 2002 governs duty of care and negligence claims. This article explains the nature of a duty of care in Tasmania.

Recognised categories of duty of care

The law recognises that certain relationships inherently carry a duty of care. There is a legally established duty of care in the following situations:

• Between road users;
• Manufacturers of goods to consumers;
• Service supplier to consumers;
• Landlord to tenant;
• Solicitor to client;
• Doctor to patient;
• Private premises occupant to entrant;
• Public authorities to the public; and
• Prison authorities to prisoner.

These examples are notable for the fact that the person owing the duty is in a position of control. Only the occupier, for instance, can ensure that a property is safe for visitors. The visitor must rely on the occupier to provide a reasonably safe environment.

Even where a duty of care is not already recognised, a court can determine that there was a duty by applying legal principles and policy factors. Primarily, the court must be able to draw an analogy with a recognised duty of care relationship. This calculation includes the defendant’s level of control in the given situation, the plaintiff’s vulnerability to harm, and the power balance of the relationship. The courts also take into account ethical and moral considerations, and the consistency of legal principles.

Non-delegable duty of care

In some relationships, one party exercises a significantly high degree of control over another party with a special vulnerability or dependence. In these relationships, the duty of care is non-delegable, so the defendant cannot escape liability by passing responsibility to a third party, such as an employee. Examples of non-delegable duty of care relationships are hospital to patient, employer to employee, and school to pupil.

Exemption to duty of care

Some relationships are exempt from a duty of care under common law. For instance, a Good Samaritan in an emergency does not owe a duty of care to an injured person, although they must not be reckless when applying aid. Additionally, the Civil Liability Act does not apply to an intentional act intended to cause injury or death, sexual assault or sexual misconduct (except for child abuse). Also, the Act does not cover death or injury resulting from the use of tobacco products. Further, the Act does not apply to injuries otherwise covered by the Workers Rehabilitation and Compensation Act 1988, the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011, the Criminal Injuries Compensation Act 1976, the Anti-Discrimination Act 1988 or a scheduled benefit under the Motor Accidents (Liabilities and Compensation) Act 1973.

Breaches

Once a duty of care has been established, a plaintiff in a negligence claim needs to demonstrate that the defendant breached their duty. In Tasmania, a person does not breach their duty of care unless these three elements exist:

1. There was reasonable foreseeability of risk;
2. The risk was not insignificant; and
3. A reasonable person, in the same circumstances, would have taken precautions against the risk.

A reasonable person is not expected to be perfect. What is reasonable depends upon the circumstances of each case. For instance, the courts recognise that an emergency may not allow for the same careful weighing of every act. Conversely, the courts have found there was a higher duty when the defendant held themselves out to be an expert, or where the injured person was especially vulnerable (such as a child).

Negligence claims

When a person suffers damage because of another person’s negligence, they may be able to receive compensation. A person who thinks that they have a negligence claim should seek legal advice immediately because there are strict time limits. Common examples of negligence claims include when:

• A driver fails to comply with traffic law and causes an accident, injuring another driver or their vehicle;
• An employer fails to provide a safe working environment, and an employee is injured as a result;
• A child is injured because of a school’s failure to properly supervise; or
• A patient is injured during an operation because of a doctor’s lack of due care.

Tasmanian law relating to the duty of care is complicated, and you should seek specialist advice to address your specific circumstances. Please contact Go To Court on 1300 636 846 If you require legal advice on any civil law matter.

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