When a professional breaches duty of care

A duty of care is a legal obligation to avoid doing things that could foreseeably cause harm to another person. A breach of a duty of care amounts to the tort of negligence if it leads to harm to a person. In Victoria, negligence is governed by the Wrongs Act 1958, and the common law. While in some circumstances it may be clear whether or not a person owes a duty of care to another, in other situations it is not clear.  

Established duty of care relationships

There are some categories of relationship where it is well established at law that a duty of care exists. When a situation falls outside of established duty of care relationships, a court must determine whether such a duty existed. 

Established duty of care relationships include:

• Teacher to student;
• Employer to employee;
• Parent to child;
• Occupier of premises to entrant;
• Road user to other road user;
• Manufacturer to consumer.

Does a duty of care exist?

There is no exact formula for determining whether a duty of care exists in any given situation. Whether a duty exists is determined by courts with regard to the question of what is reasonably foreseeable and to the level of proximity between the parties and public policy. 

If a person knows or should know, that their actions may cause harm to another person who is not able to protect their interests, a relationship of proximity exists that gives rise to a duty of care. A duty of care can be denied on public policy grounds if the court considers that finding it to exist would not be fair.

When courts are determining whether a duty exists they consider:

• The kind of harm the plaintiff suffered;
• The degree of control the defendant exercised;
• The nature of the relationship between the parties;
• Ethical and moral considerations.

Standard of care

If a party owes a duty of care, it must use a reasonable standard of care. What is reasonable varies depending on the circumstances. The court will ask ‘what would a reasonable person in the same position and having the same knowledge as the defendant, do?’

If a defendant followed an established practice that is widely followed across the sector they were operating in it is unlikely that it will be found to have failed to exercise a reasonable standard of care.

The court will also consider other factors when determining the standard of care that needed to be applied. These include the resources available to the defendant, the level of risk inherent in the actions being undertaken and the utility of the defendant’s conduct

Breach of duty of care 

When a standard of care is not met, there has been a breach of duty of care. The defendant will be guilty of the tort of negligence if the risk was not far-fetched, the harm suffered was foreseeable and a reasonable person would have taken steps to ensure the harm did not occur. 

Remedies for breach of duty

When a person sues another person for a breach of a duty of care, the most common outcome is the court granting an award of monetary compensation. The amount of monetary compensation will be assessed based on the following considerations:

• The effect on the plaintiff’s ability to earn money;
• Any personal injury;
• Any financial loss suffered;
• Any damage caused to personal property;
• Whether the plaintiff was contributorily negligent (ie contributed to his or her own harm).

If you require legal advice in a civil law matter or in any other legal matter, please contact Armstrong Legal. 

Negligence entails unreasonable behavior that breaches the duty of care that the defendant owes to the Plaintiff. 

This standard is known as the reasonable person standard.

Next Article: Proximate Causation Return to: TORT LAW

What is unreasonable behavior that constitutes a breach of duty under tort law?

Whether conduct is unreasonable is a mixed question of law and fact. 

The duty of care exists under the law, but the determination of what is reasonable may be unreasonable in another situation. 

In determining whether conduct is unreasonable, a court will consider the likelihood that the defendant's conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk. 

Notably, the reasonable person standard of care is an objective standard based upon the nature of the relationship and the subjective characteristics of the plaintiff.

• Note: A professional, such as a doctor, will be held to the standard of a reasonable professional in a given situation. A failure of a professional to act reasonably within the scope of her duties is known as malpractice. Further, a large person interacting with a small child may owe a higher standard of care to avoid harmful physical contact than a small person interacting with a large person.

Can Inaction be Unreasonable Behavior?

In some situations, inaction may constitute unreasonable behavior. 

This is true when a special relationship exists or one individual causes the risk of harm to the other person. 

In such a situation, an individual incurs an affirmative duty to act. 

Failing to act drops below a reasonable standard of care.

• Example: A mother fails to help her child cross the street. If the child strays into traffic and is injured, the mother's inaction is negligent in causing harm to the child. A mother is assumed to act in the best interest of her child, such that others will not act assuming the mother will act. I push a non-swimmer into deep water, I now have a duty to act reasonably in preventing that person from drowning. My inaction to rescue her will result in liability.

What is Gross Negligence?

Negligence generally entails a simple failure to meet the standard of care owed to others. Gross negligence, in contrast, is a severe departure from the standard owed.

• Example: I am rock climbing with a friend. I do not hook our climbing rope in carabiners every 5 feet, as recommended. I think we will make better time if I hook the rope every 15 feet. When my friend slips, he falls 15 feet, rather than 5 feet, before the rope catches him. This causes him to slam very hard into the rock face. This may be an example of gross negligence. I may not have intended the result or appreciated the risk, by my actions fall way below an acceptable standard of care.

What is Reckless & Wanton Behavior?

Reckless behavior demonstrates a complete disregard for the potentially harmful consequences of one's conduct. It generally requires a defendant to appreciate the nature and severity of the potential harm that may arise from the conduct. Though it does not entail intent to cause them harm, it shows an extreme lack of due care. Such conduct falls below the standard of care owed to other individuals and constitutes negligence. In some jurisdictions, reckless conduct is known as aggravated negligence. The law frequently allows a plaintiff to recover punitive damages as well as actual damages in such situations.

• Example: Shooting an arrow up into the air without knowing whether anyone will be harmed by the arrow could be reckless conduct.

What is Res Ipsa Loquitur?

Two situations exist where a defendant may either be held liable without a showing of unreasonable conduct or the unreasonableness of conduct is inferred from the facts of the situation.

Res Ipsa Loquitur posits that in some situations the very nature of the accident or situation indicates that the conduct of the defendant was negligent. That is, this type of harm would not have occurred in the absence of negligence by someone in the defendant's position. As such, it is not necessary to demonstrate how a reasonable person would or should have acted in the situation.

• Example: Tom is walking by a building when a potted plant falls on his head. It is apparent that the potted plant fell from the room of the building where there is a community garden. Ginny keeps a garden and is present in the garden when the plant falls. There is no evidence that Ginny intentionally dropped the plant or that she was negligent in allowing the plant to fall, but this could result in her liability for negligence pursuant to res ipsa loquitur. It is abnormal that a plant would fall from the top of the building unless someone was negligent in her actions causing the resultant harm.

What is Negligence Per Se?

Negligence per se posits that a failure to meet a standard or guideline, often established by a statute or regulation, means an individual is negligent without examining whether the individual's conduct in the situation was reasonable.

• Example: A professional practice group may establish standards of conduct for its employees. If an employee does not comply with that standard, it could be negligence per se. Violating the standards is assumed negligent without a demonstration of how a reasonable person would act. Further, if an individual is involved in a car crash while speeding, the violation of the speed limit may demonstrate negligence per se without a need to show that a reasonable person would not have been driving at that rate of speed.

Related Topics

How do you feel about using the fictional, reasonable person standard to determine whether an individual has acted reasonably? Do you think that the reasonable person standard varies depending upon the fact-finder? Why or why not? Does it surprise you that inaction can constitute unreasonable behavior in some circumstances and not in others? Why or why not? Should reckless and wanton behavior be considered an intentional tort or unreasonable behavior for purposes of liability? Why?

 Eric is a lifeguard by profession. He is taking a leisurely strong along the lake when he notices a person in distress. He begins to swim after the drowning individual. A few feet into the water, he realizes the water is cold. He does not want to get sick, so he quickly gets out of the water and goes on his way. Has Eric committed a tort?

• There are many instances that can cause a defendant to breach the duty of care. One of those includes the inaction by the defendant to do what they are expected to do. This also includes where the defendant, who knows exactly what they are supposed to do or their obligation, ignores this obligation, and hence the other person gets injured for this. In the practice question, Eric has undertaken help and thereby incurred a duty of care. The fact that he is a lifeguard means that he must now act as a reasonable lifeguard under the circumstances. He chose to abandon a person in distress, which means he did not act as a reasonable person (trained lifeguard). Thus, he breached his duty of care.