“But, What About Duty of Care?”

TGB’s Medical Negligence team explains the ins-and-outs of the ‘duty of care’ including how and when it applies in South Australia.

Not everyone who consults a personal injury lawyer has a “good case”.  When I am trying to advise a client that they do not have a good case and why, the question I get asked often by bewildered clients is “but what about duty of care”?  The legal concept of duty of care exists, but it is only one of four elements that a plaintiff needs to establish before that plaintiff can sue for compensation for personal injury suffered due to negligence.  The four elements that the plaintiff needs to satisfy to be able to claim in negligence are as follows:

1. That the defendant owed the plaintiff a duty of care;

2. That the defendant breached its duty of care to the plaintiff;

3. That the plaintiff has suffered loss;

4. That the loss suffered by the plaintiff was caused by the defendant’s breach of duty of care.

1. Duty of care

The idea of duty of care goes back to the beginnings of the British Common Law system that became Australian Law when the country was colonised.  The idea is that people going about their daily business have an obligation to take reasonable care for the safety of others in certain situations.  Doctors have a common law duty of care to their patients.  Employers have a duty of care to employees, although an injured worker can only claim compensation through the Return to Work Act 2015 and not at common law.  Schools have a duty of care to look after students while the students are on school property or on school excursions.  Occupiers such as shopping centres or hotels have a duty of care to those persons that they invite on to their premises.

The Civil Liability Act (SA) 1936 does prescribe and limit some duties of care.  For example, Section 22 of the Civil Liability Act limits the duty of care that a landlord owes to tenants for any failure to maintain or repair the rental property.  Section 33 of the Civil Liability Act limits the duty of care of a person to another person to take care not to cause that person mental harm.   Section 42 of the Civil Liability Act says that a road authority such as a council is not liable for any failure to maintain or repair a road.  The definition of road includes footpath.  However, existence of the duty alone is not enough and the plaintiff (person suing) must also establish the other three such elements of negligence in order to claim compensation.

2. Breach of duty of care.

In public liability claims and medical negligence claims, this is often the most difficult hurdle for a plaintiff to establish.  Whether the defendant has breached his or her duty of care to a plaintiff or failed in his or her care is a matter of evidence and can include expert evidence.  Common examples include supermarkets where the Courts have said that supermarkets that have a system of checking floors every 20 to 30 minutes and cleaning up spillages where applicable will not be in breach of their duty of care to customers who slip and fall in between those 20 to 30 minute checks.  Stores who do not have those systems in place are likely to be found to breach their duty of care where a person slips and falls.

In medical negligence claims, whether a doctor or hospital breached its duty of care to a patient is a matter of expert evidence.  It is virtually impossible to pursue a medical negligence claim without a doctor providing an opinion critical of the standard of care provided to the person by the hospital or doctor.

In situations where a person suffers an accident on premises such as falling down a staircase or tripping, an expert is sometimes called in to provide an opinion on whether or not the design of the premises or the surface of a step or the design of the staircase meets Australian standards.

The common law test for breaching duty of care is reasonable foreseeability, that is to say, should the defendant have reasonably foreseen that the plaintiff would suffer injury if the defendant did not take reasonable action to reduce or prevent the risk of injury?

3. The plaintiff must suffer damage.

In order to claim compensation in South Australia which is a compensatory damages system, the plaintiff must show that he or she has suffered loss arising out of the incident.  Sometimes, clients will suffer near misses, that is to say, they may have suffered a serious injury but fortunately did not suffer serious injury as a result of the incident but they still want to sue the defendant concerned.  In those cases, the plaintiff cannot claim.  If by some sort of miracle or fate, the plaintiff manages to avoid the nasty consequences of the defendant’s negligence, the plaintiff cannot claim.  There is no such thing as aggravated or exemplary damages in South Australia where a negligent defendant can be made to pay compensation as punishment or penalty for the failure of care.  The plaintiff who could have died but who recovered quickly cannot claim.

4. Damage suffered by the plaintiff must be caused by the breach duty of care by the defendant.

This is an issue that comes up regularly in medical negligence matters.  The damage that the plaintiff suffers as a result of the failure of care must be caused or arise out of the failure of care.  One has to be tied to the other.  The test is the ‘but for’ test, that but for the breach of duty, the injury would not have happened.  In medical negligence claims, not all of the injury may have been caused by the breach.  For example, when a person has a delayed diagnosis of cancer or stroke, experts have to give evidence on what the extent of the damage caused by the stroke or the staging of the cancer would have been if the delay had not occurred.

In summary, the existence of a duty of care is just the starting point and often the easiest requirement to satisfy for a negligence claim.  Damage is also easy to establish.  It’s the thorny question of breach in particular and sometimes causation that presents the greatest challenge.

For further information or assistance contact your nearest TGB office.