Establishing a Duty of Care in Personal Injury Law

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Published by Preston Law on 31/03/2022

A key component of making a successful personal injury claim is establishing that a duty of care existed. If you have suffered an injury and would like to bring a claim for compensation, you will need to establish that a duty of care both existed and was breached, and that the breach caused your injury to occur.

What is a duty of care?

A duty of care is a legal requirement that, depending on the circumstances, belongs to a person, group or people, body corporate or organisation that requires the responsible party or parties to prevent any wrongdoing that might cause foreseeable harm or injury to a person.

At any one time every person owes a duty of care to themselves and the responsibility to be mindful of the safety of others, but some people owe particular people a duty of care, such as employers who must ensure that the health and safety of their employees is paramount, or a doctor who is treating their patient and must ensure they are not putting them in any foreseeable danger.

What is a breach of duty of care?

A breach of duty of care occurs when the person, people or body that owes a duty of care neglects to exercise that care by allowing foreseeable harm to come to those they are responsible for protecting.

Who has a duty of care?

There are countless situations in which a duty of care is owed. Some of the key relationships where a duty of care is expected include:

  • Schools to their students;
  • Medical professionals to their patients;
  • Employers to their workers;
  • Councils or other government bodies to people using public land;
  • Road users to other drivers, cyclists or pedestrians on the road;
  • Owners or occupiers of a private premises (such as a shopping centre) to visitors of the premises; and
  • Solicitors to their clients.

In what situations might compensation be paid due to a lack of duty of care?

An injured party may be eligible for compensation if they can prove they were owed a duty of care and that a breach of that duty caused their injury. If the injured party is able to establish that the party responsible for their injury could foresee the harm, neglected to prevent it and in fact owed them a duty of care then they may be able to pursue the claim. The best way to ascertain if compensation should be sought is to speak to a personal injury lawyer who is experienced in this area of the law and will be able to determine how successful the claim for compensation would be.

Some situations that a personal injury lawyer may have dealt with before include:

  • Workers compensation claims, where the party was injured during the course of their work. The injury sustained does not have to be physical. Psychological injuries caused by bullying and/or harassment may also be compensable;
  • Road and traffic accidents that resulted in injury to the driver, passenger/s or pedestrian/s; and
  • Medical negligence, where a patient has been left worse off than when they sought treatment either due to surgery or an inappropriate treatment plan.

If you have been injured in one of the above situations or similar and you would like to speak to a personal injury lawyer about pursuing a claim for compensation against the responsible party, please contact our office today on (07) 4052 0700. There are some time constraints for personal injury claims and the sooner you seek legal advice the more time you and your lawyer will have to establish your case.

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