In the event that you have suffered injury or loss as a result of a breach of duty of care, you may be entitled to compensation. The amount of compensation you can receive will vary depending on the specific details of your case and the laws governing your location.
This article will explain duty of care and its relevance to personal injury claims.
What is duty of care?
The legal concept of duty of care refers to the obligatory standards that individuals, corporations, and entities must observe to prevent foreseeable harm or injury — including psychological injury — to others who their actions or omissions could reasonably impact.
The legal framework for duty of care is outlined within numerous pieces of legislation, one being the Civil Law (Wrongs) Act 2002, which acts as a foundation for the duty of care principle in Australia. The criteria for a breach of duty of care, as outlined by the legislation, are as follows:
- The defendant was obligated to uphold a duty of care to the plaintiff.
- The defendant’s failure to take reasonable precautions in preventing harm to the plaintiff constituted a breach of this duty of care.
- As a result of this breach, the plaintiff suffered loss or damage — speaking to causation.
- The plaintiff’s loss or damage was not considered too remote in relation to the defendant’s breach of duty.
In addition to outlining the criteria for a breach of duty of care, the Civil Law (Wrongs) Act 2022 also establishes a comprehensive framework governing the scope of duty of care, causation, the standard of care, defences and other fundamental principles related to civil wrongs.
Compensation entitlements
While the basic principles of duty of care remain consistent across Australian states, variations exist in the way this concept is applied. The intricacies of compensation — in relation to a breach of duty of care — largely hinge on the distinct statutes and regulations of individual states, as well as the specific circumstances surrounding the breach.
Nonetheless, there are common compensation entitlements that are generally upheld as a matter of common law — as outlined by the Civil Law (Wrongs) Act 2022 — which include:
- Non-economic loss: The Act outlines a framework for determining compensation for non-tangible damages, encompassing pain and suffering and loss of quality of life. Additionally, the injury’s severity is taken into account when determining compensation, with more serious injuries warranting a higher recompense.
- Economic loss: Compensation awarded for tangible losses, including loss of income, future earning capacity and other related economic losses. In evaluating past and future economic loss, various factors are brought into consideration, such as the injured person’s age and occupation.
- Medical and other expenses: Relating to covering of medical treatments, rehabilitation expenses and other out-of-pocket therapeutic expenses incurred by the victim as a direct ramification of the injury.
- Contributions by the injured person: The Act further stipulates that the court must consider any contributions made by the injured person towards their own injury, such as failing to wear a seatbelt in a car accident, or driving under the influence of alcohol, for example.
If you believe that you have been subject to a breach of duty of care, seek the advice of local personal injury solicitors. This can help you to understand the relevant duty of care and personal injury legislation in your state.
How duty of care applies to common types of personal injury claims
There are four common causes of personal injury claims in Australia: Medical negligence, motor vehicle accidents, public liability claims and workplace accidents. Here’s how duty of care may apply to each:
Medical negligence
The duty of care for medical professionals requires practitioners — in alignment with personal injury law — to take reasonable precautions to prevent loss, injury or further harm to their patients. Common examples of medical negligence claims include surgical errors, misdiagnosis and failure to obtain informed consent from patients.
Motor vehicle accidents
Referring to the standard upheld by all road users — whether by car, truck, bicycle or other form of transportation — to ensure reasonable care and prevent harm or injury to other road users. Common examples of breaching the duty of care in relation to motor vehicle accidents include driving under the influence, failing to stop at a red light and speeding.
Public liability
Businesses or property owners who own public spaces have a duty to take reasonable steps to ensure the safety of those who use them. Examples of public liability claims include slips on poorly maintained floors and injuries caused by falling objects.
Workplace accidents
Employers have a legal obligation to ensure a safe working environment for both employees and contractors. Breaching workplace duty of care could take various forms, such as failure to provide sufficient safety equipment or training, tolerating workplace discrimination, or not promptly addressing potential safety hazards or concerns.
It’s important to acknowledge that these examples are generalisations, and the nature of personal injury claims can vary greatly depending on the circumstances and specific state legislation. Therefore, seeking the guidance of expert legal advice is necessary.
If you’re considering filing a personal injury claim, our team at GMP Law are experts and can lead you in the right direction — ultimately toward the compensation you deserve. Get in touch today.
