Most claims for compensation in respect of personal injuries in Australia are brought under a rule known as the tort of negligence. The word “tort” simply means “wrong”. This tort consists in several elements. The elements are (1) a duty of care owed by the wrongdoer to the injured person; (2) a breach of that duty; and (3) damage caused by the breach of duty. The injured person must prove that all three elements are satisfied if he or she is to recover compensation. If any one of these elements is missing, compensation cannot be recovered (in the tort of negligence). This blog post is concerned with the duty of care element.

The duty of care is in issue relatively rarely in personal injury cases. This is because most claims fall within categories of case in which it is accepted as a result of previous decisions that a duty of care exists. For example, it is well established that a duty of care is owed by a motorist to all other road users. Doctors owe a duty of care to their patients. Employers owe a duty of care to their employees. And schools are under a duty of care with respect to their pupils. Cases falling within any of these categories will not ordinarily present any issue as to the existence of a duty of care.

Exceptionally, however, a wrongdoer might argue that even though the case falls within a category in which it is accepted as a result of previous decision that a duty of care ordinarily arises, the risk of injury fell outside the scope of the duty of care. Suppose that an employer knows that its car park is dimly lit and that people using it have been mugged in the past. The employer clearly owes a duty of care to its employees to guard against risks created by its positive conduct (as observed, in the previous paragraph). But it might be suggested that that duty of care does not require the employer to protect employees who use the car park from attacks carried out in the car park by muggers. This example is based closely on the High Court’s decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil, in which it was held that no duty of care arose.

If a given case does not fall within a category of relationship in which it has already been established by previous decisions that a duty of care arises, how can it be discovered if a duty of care was owed? There are two broad points to note here. The first is that, in order for a duty of care to arise, the risk of injury to someone such as the person seeking compensation must have been reasonably foreseeable. If the risk of injury was not reasonably foreseeable, no duty of care will exist. However, the mere fact that the risk of injury was reasonably foreseeable, while required to generate a duty of care, is insufficient to create a duty. This leads to the second point. In addition to the risk of injury being reasonably foreseeable, the “salient features” of the case must also point in favour of the existence of a duty before the courts will recognise a duty. Salient features including the following:

  1. whether the victim was especially vulnerable to the risk of injury in question;
  2. whether the wrongdoer had special control or knowledge over the circumstances that led to the injury;
  3. whether any duty of care imposed would collide with statutory obligations owed by the wrongdoing; and
  4. whether imposing a duty of care would result in the wrongdoer being exposed to liability the extent of which could not be predicted easily in advance.

Depending on the facts of the case, factors (1) and (2) might support the existence of a duty; factors (3) and (4), conversely, might point against a duty. These factors are, of course, merely illustrative. There are many other potentially relevant considerations.

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Written by Dr James Goudkamp

James Goudkamp is an Associate Professor of Law at the University of Oxford. He is the author of numerous books about personal injury compensation. James also practices as a barrister in London and assists Tom Goudkamp and his team with personal injury claims with a European connection.