What is duty of care?
Duty of care is a key component of the broader legal principle of negligence, which falls under the domain of common law. A failure to uphold duty of care is evaluated through the following four steps: Duty of care is a key component of the broader legal principle of negligence, which falls under the domain of common law.
A failure to uphold duty of care is evaluated through the following four steps: The worker owed a duty of care to the client. The worker failed to meet the required standard of care (a breach of duty occurred). This breach directly caused injury— what the worker did or did not do led to the injury. The injury was significant enough to warrant compensation—considering the severity of the injury.
When evaluating a potential breach of duty of care, two aspects are considered: reasonableness and culpability.
- Reasonableness: Was it reasonable to take the actions that were taken? Would a reasonable person have acted similarly under the same circumstances?
- Culpability: Was anyone at fault?
Several factors help determine what is reasonable and practical:
- Nature and severity of the hazard: For example, is it reasonable to expect someone to prevent a cyclone?
- Knowledge of the hazard’s severity: Was it reasonable to assume you should have been aware of the impending cyclone?
- Awareness of possible solutions: Was it possible to relocate people from the cyclone’s path or move them to a safer location?
- Common standards of practice: What are the standard procedures when a cyclone is approaching?
- Availability of solutions: Was there a vehicle or other means to evacuate yourself and others?
- Cost of solutions: Were the solutions affordable given the circumstances?
Duty of care is integral as it complements the legislation concerning restricted practices. Using an unauthorized restricted practice as a duty of care may be necessary. It is not a valid defence to claim, “I did not prevent my client from going onto a busy road because restraining them would have been an unauthorized restricted practice.” However, a valid defence may be that restraining the client would have put you at risk, particularly if the client was significantly larger and could have dragged you onto the road. In this scenario, foreseeable risk would also be considered, taking into account the client’s previous behaviour, skills (e.g., ability to follow instructions), and other relevant factors. This may indicate that the duty of care would have been to ensure the client was not in a community area near a busy road in the first place. Duty of care does not mean preventing a client from having the same opportunities as their peers to engage in activities that may involve risk, such as playing sports or swimming.