Understanding Duty of Care in NSW: Your Guide to Legal Obligations

Ever slipped on a wet floor in a supermarket? Been involved in a car accident? Received advice from a professional that turned out badly? These common scenarios often raise a fundamental legal question: when is someone legally responsible for preventing harm to others? At the heart of this question lies the concept of duty of care. It’s a cornerstone of negligence law in New South Wales (NSW), and understanding it is crucial whether someone is a business owner, an employee, a property holder, or simply going about their daily life.

This article delves into the duty of care as it operates under NSW legislation. It will explore what the term means, how the key law – the Civil Liability Act 2002 (NSW) – shapes it, and how courts determine if a duty exists. Furthermore, it will examine the required standard of care, what constitutes a breach, the critical link of causation, how the duty of care applies in specific situations like workplaces and on the roads, and the defences available if a claim arises. Finally, it concludes with key takeaways and answers some frequently asked questions. Grasping the principles of duty of care empowers individuals and businesses in NSW to understand their obligations and navigate potential legal situations more effectively.

What Exactly is a “Duty of Care”?

The Basic Idea: Looking Out for Others

At its core, a duty of care is a legal obligation imposed on individuals and entities to take reasonable steps to avoid causing foreseeable harm to others. It’s essentially a responsibility to act carefully when it’s predictable that carelessness could injure someone else, either physically, mentally, or economically. Think of it like checking mirrors and blind spots before changing lanes while driving; there’s an accepted responsibility (a duty) to look out for other road users who could reasonably be affected by that action.

This isn’t just a moral suggestion; it’s a legal requirement in many situations. Where someone owes a duty of care but fails to meet the required standard of carefulness (an act known as negligence), and this failure directly causes another person to suffer loss or injury, the negligent party may be legally required to compensate the injured person. This compensation can cover tangible financial losses, like lost income or medical expenses (economic loss), as well as intangible harm like pain, suffering, and loss of enjoyment of life (non-economic loss). Establishing that a duty of care was owed is the first, essential step in any negligence claim.

Where it Comes From: Common Law Roots

The concept of a duty of care didn’t just appear overnight in legislation. It has deep roots in common law, meaning it developed gradually over centuries through the decisions made by judges in countless court cases. Historically, liability for causing harm carelessly was often tied to specific situations or relationships, like the duty to safely manage fire or dangerous animals, or duties arising from contracts. There wasn’t initially a single, overarching principle of negligence.

A pivotal moment in the development of the modern duty of care is often traced back to the famous English case Donoghue v Stevenson in 1932 (the one involving a decomposed snail in a ginger beer bottle!). While the specifics are less important than the principle, this case helped establish the broader ‘neighbour principle’. This principle suggests that a duty of care is owed to those people who are so closely and directly affected by one’s actions that they should reasonably be in contemplation as being affected when directing one’s mind to the acts or omissions in question.8 This highlights the crucial element of reasonable foreseeability – could someone predict their actions might harm this person?

While legislation, particularly the Civil Liability Act 2002 in NSW, now significantly shapes how duty of care operates, understanding these common law origins helps explain the fundamental ideas of foreseeability and relationship that still underpin the law today. The evolution from specific, rigid categories of liability towards a more flexible principle based on foreseeability reflects the law’s adaptation to increasingly complex social and economic interactions, necessitating a mechanism – the duty of care – to determine when carelessness becomes legally actionable.

The Key Law: NSW’s Civil Liability Act 2002 (CLA)

Why This Act Matters

While common law provides the historical foundation, anyone dealing with negligence or duty of care issues in NSW today must be familiar with the Civil Liability Act 2002 (NSW), often referred to as the CLA. Enacted in 2002, this Act is the primary legislation governing civil claims for damages arising from negligence, particularly those involving personal injury or death.

The introduction of the CLA marked a significant reform of negligence law in NSW. It aimed, in part, to address concerns about the perceived rising costs and frequency of insurance claims and litigation by setting clearer rules and, in some areas, placing limits on liability and the amount of damages that could be awarded. The CLA applies broadly to any claim for damages resulting from harm caused by negligence, regardless of whether the claim is framed in tort (like a typical negligence action), breach of contract, under another statute, or otherwise, unless the liability is specifically excluded by the Act itself. Its influence is pervasive in personal injury and related civil matters in the state.

How the CLA Guides Negligence Claims

It’s crucial to understand how the CLA interacts with the established common law principles of negligence. The Act doesn’t completely replace the common law; rather, it operates as an overlay, modifying, clarifying, and sometimes codifying those principles. The CLA contains a wide range of provisions that re-express and regulate key aspects of negligence law, particularly the determination of breach of duty (Sections 5B and 5C) and causation (Section 5D).

This creates a necessary two-tiered analysis for negligence claims in NSW. Generally, the question of whether a duty of care exists in the first place is still determined by referring to common law principles (like foreseeability and established relationships). However, there are important exceptions where the CLA itself sets specific rules about duty, such as for public authorities (Part 5), mental harm (Part 3), recreational activities (Part 1A, Division 5), and professional negligence (Part 1A, Division 6). Once it’s established that a duty exists (either under common law or specific CLA rules), the analysis must then turn to the CLA provisions, particularly sections 5B and 5C for breach, and section 5D for causation, to determine if liability is established. The Act also contains specific divisions or parts dealing with assumption of risk, contributory negligence, intoxication, non-delegable duties, and various limitations on damages, making it the essential starting point for analysing the specifics of any negligence claim in NSW.

Do You Owe a Duty? Establishing Responsibility

Before considering carelessness or harm, the first hurdle in any negligence claim is establishing that the defendant actually owed the plaintiff a duty of care. How is this determined?

Obvious Cases: Recognised Duty Relationships

Over time, the courts have recognised that certain relationships inherently involve a duty of care because one party typically has significant control over the circumstances affecting the other’s safety, or the other party is particularly reliant or vulnerable. In these established categories, the existence of a duty of care is generally accepted without needing extensive argument.

Here are some common examples recognised in NSW law:

Relationship	Basis of Duty (Examples)
Employer to Employee	Control over workplace, systems of work, safety training
Doctor/Healthcare Prof to Patient	Professional expertise, patient reliance, vulnerability
Solicitor to Client	Professional legal services, client reliance
Manufacturer to Consumer	Control over product safety, consumer reliance
Occupier/Landowner to Visitor	Control over premises safety, visitor’s lawful presence
Road User to Other Road User	Shared use of roads, potential for harm from carelessness
School/Teacher to Student	Supervision, control over school environment, vulnerability
Public Authority to Public User	Control over public spaces (roads, parks), user reliance
Landlord to Tenant	Responsibility for premises safety
Prison Authority to Prisoner	High degree of control over prisoner’s environment

(This list is not exhaustive, but covers frequently encountered situations)

The reason these relationships typically involve a duty of care often comes down to that element of control or reliance. An employer directs the work environment, a doctor possesses medical knowledge the patient lacks, and an occupier controls access and safety conditions on their property.

The “Neighbour Test”: Was Harm Reasonably Foreseeable?

What happens if the situation doesn’t fit neatly into one of the established categories? The fundamental test then becomes one of reasonable foreseeability. Was it reasonably foreseeable that the defendant’s conduct – their actions or their failure to act – could result in harm or injury to the plaintiff, or to a class of people to which the plaintiff belongs?.

“Reasonably foreseeable” doesn’t mean the defendant had to predict the exact sequence of events or the precise nature of the harm. Instead, it asks whether a hypothetical reasonable person, standing in the defendant’s shoes before the incident occurred, ought to have foreseen a risk of that general type of injury happening if they failed to exercise care. This is an objective assessment, not based on what the specific defendant actually foresaw, but on what they should have foreseen.

While foreseeability is essential, particularly in novel or complex situations, it might not be the only factor courts consider. The relationship between the parties (sometimes referred to as ‘proximity’), factors like the defendant’s control over the situation, the plaintiff’s vulnerability or reliance, and broader policy considerations or legal coherence (known collectively as ‘salient features’) can also influence whether imposing a duty of care is deemed appropriate. Simply foreseeing a risk doesn’t automatically equate to owing a legal duty; the overall context and relationship must justify its imposition, preventing liability from becoming overly broad.

Duties You Can’t Delegate (Non-Delegable Duties)

In some specific relationships, the duty of care owed is considered so fundamental and personal that it cannot be delegated or passed off to another party, such as an independent contractor. These are known as “non-delegable duties.” Even if the party hires someone else to perform certain tasks related to safety, the original party retains the ultimate legal responsibility if that duty is breached.

The rationale behind this is the high degree of control the party owing the duty has over the potential risk, combined with the significant vulnerability or reliance of the person to whom the duty is owed. Key examples of relationships involving non-delegable duties in NSW include:

• Employer and employee 
• Hospital and patient 
• School authority and student 

For instance, a school has a non-delegable duty of care for the safety of its students. While it might hire a contractor to maintain playground equipment, if a student is injured due to faulty maintenance, the school cannot simply blame the contractor; the school itself remains potentially liable because its duty to the students is non-delegable. The Civil Liability Act 2002 also specifically addresses non-delegable duties and vicarious liability in Part 1A, Division 7.

How Careful Must You Be? The Standard of Care

Once it’s established that a duty of care is owed, the next critical question is: what level of care was required? It’s not enough to owe a duty; the defendant must have failed to meet the standard of care expected in the circumstances.

The “Reasonable Person” Standard

NSW law generally measures the defendant’s conduct against the standard of a hypothetical “reasonable person”.3 Section 5B(1)(c) of the CLA requires considering whether, in the circumstances, a reasonable person in the defendant’s position would have taken precautions against the risk of harm. The benchmark is what this objective, prudent, but not overly cautious or risk-averse individual would have done (or not done) if faced with the same situation, possessing the same information the defendant had or ought to have had [s5R(2)(b)].

This is an objective test. It doesn’t usually take into account the defendant’s individual shortcomings, like being inexperienced or less skilled than average (unless they hold themselves out as having a special skill, like professionals). The law expects a minimum level of competence and care from everyone.

Importantly, the standard is one of “reasonable care,” not perfection. The law recognises that accidents happen, and not every injury results from negligence. A defendant is not expected to guarantee absolute safety or eliminate every conceivable risk, only to take precautions that are considered reasonable in the circumstances.

Weighing it Up: Probability, Seriousness, Burden, Utility (CLA s5B(2))

So, how do courts determine what a “reasonable person” would have done? The CLA, in Section 5B(2), explicitly directs courts to consider several key factors in this assessment – often referred to as the ‘calculus of negligence’. These factors, drawn from long-standing common law principles but now codified, must be weighed:

• (a) The probability that the harm would occur if care were not taken: Was the risk likely or unlikely to happen? A higher probability generally demands greater care.
• (b) The likely seriousness of the harm: What were the potential consequences if the risk materialized? The possibility of severe injury or death warrants more significant precautions than minor harm.
• (c) The burden of taking precautions to avoid the risk of harm: How difficult, costly, or inconvenient would it have been to eliminate or reduce the risk? This includes considering the burden of taking precautions against similar risks the person might be responsible for (as per CLA s5C(a)). If precautions are simple and cheap, failing to take them is less likely to be considered reasonable.
• (d) The social utility of the activity that creates the risk of harm: Does the activity provide a significant benefit to the community that might justify taking certain risks? For example, emergency services responding to a call might reasonably drive faster than usual.

The court performs a balancing act, weighing these factors in the specific context of the case. There’s no precise mathematical formula. It’s a practical judgment about whether the defendant’s response to the foreseeable risk was reasonable in all the circumstances. By codifying these factors, the CLA aims to bring greater consistency and predictability to the assessment of whether the standard of care has been met, standardising the elements courts must consider compared to a more open-ended common law approach.

When is the Duty Breached? Failing to Take Care

Establishing a duty of care and the required standard is only part of the picture. To be found negligent, a defendant must have breached that duty by failing to meet the necessary standard of care.

Spotting the Risk: Foreseeable and “Not Insignificant” (CLA s5B(1))

The Civil Liability Act 2002 sets out a clear, three-pronged test in Section 5B(1) that must be satisfied before a person can be found negligent for failing to take precautions. A person is not negligent unless:

• (a) The risk was foreseeable: As discussed earlier, this means it’s a risk the person knew about, or one they ought reasonably to have known about.
• (b) The risk was not insignificant: This is a key requirement introduced by the CLA. It means the risk must be more than one that is ‘far-fetched or fanciful’. It doesn’t need to be probable or likely, but it must have a real chance of occurring that isn’t negligible. This threshold is generally considered higher than the old common law test, aiming to prevent liability for very minor or remote risks as part of the tort law reforms.
• (c) A reasonable person would have taken precautions: In the specific circumstances, would a reasonable person in the defendant’s position have taken steps to avoid the harm? This links back directly to the standard of care analysis and the balancing factors in Section 5B(2) (probability, seriousness, burden, social utility).

Essentially, a breach occurs when someone fails to respond reasonably to a risk that they should have foreseen and which was not insignificant.

Not Taking Reasonable Steps

A breach of the duty of care can happen either through a positive act performed carelessly (like driving too fast) or through an omission – a failure to do something that a reasonable person would have done (like failing to clean up a spill in a reasonable timeframe).

It’s important to avoid judging the defendant’s actions with the benefit of hindsight. The assessment must be based on what was known or reasonably foreseeable at the time the alleged negligence occurred. The CLA reinforces this in Section 5C, stating that the fact a risk could have been avoided by doing something differently doesn’t, by itself, prove negligence. Similarly, if a defendant takes action later to prevent a recurrence (like installing a warning sign after an accident), that subsequent action cannot be used as evidence of prior negligence or as an admission of liability [ – s5C(c)].

Consider the example of a coffee spill in a busy shopping centre. The breach isn’t necessarily the act of spilling the coffee itself (accidents happen). Rather, the potential breach by the shopping centre management lies in the failure to take reasonable steps in response – such as failing to implement a reasonable system for detecting and cleaning spills promptly, or failing to put up warning signs around the spill within a reasonable time, given the foreseeable and non-insignificant risk that a shopper might slip and fall.

Did the Breach Cause the Harm? Causation Explained

Proving that a duty of care was owed and that it was breached is still not enough to establish liability in negligence. There must be a causal link between the defendant’s breach and the harm suffered by the plaintiff. The breach must have actually caused or materially contributed to the injury or loss. The CLA addresses causation directly in Section 5D.

The “But For” Test: Factual Causation (CLA s5D(1)(a))

The primary test for establishing the factual link is set out in Section 5D(1)(a) of the CLA. It requires determining whether the defendant’s negligence was a necessary condition of the occurrence of the harm. This is often referred to as the “but for” test.

The question to ask is: “But for the defendant’s negligent act or omission, would the plaintiff still have suffered the harm?”. If the answer is ‘yes’ (the harm would likely have happened anyway, even without the defendant’s negligence), then factual causation is not established. If the answer is ‘no’ (the harm would probably have been avoided if the defendant had not been negligent), then negligence was likely a necessary condition, and factual causation is satisfied.

In specific cases involving a failure to warn (for example, a doctor failing to warn a patient about a material risk of a procedure), the CLA adds a layer in Section 5D(3). When determining what the injured person would have done if the warning had been given, the court must assess this subjectively (based on that specific person). However, any statement the person makes after suffering the harm about what they would have done is generally inadmissible, unless it’s against their own interest. This rule aims to prevent self-serving statements made with the benefit of hindsight.

Is it Fair to Hold You Liable? Scope of Liability (CLA s5D(1)(b))

Satisfying the “but for” test (factual causation) isn’t the end of the causation inquiry. The CLA introduces a second crucial element in Section 5D(1)(b): it must be appropriate for the scope of the negligent person’s liability to extend to the harm that was factually caused.

This “scope of liability” element involves considering whether the harm suffered is too remote a consequence of the defendant’s breach. It allows the court to consider whether, as a matter of common sense and policy, the defendant should be held legally responsible for that particular harm, even if their negligence was a necessary condition. A key factor here is often whether the type of harm that occurred was reasonably foreseeable as a consequence of the breach. It also allows courts to consider intervening events that might break the chain of causation.

Imagine a driver negligently causes a minor car accident. The other driver isn’t physically injured but suffers some stress. Weeks later, still feeling stressed, that driver makes a disastrous business decision, losing a significant amount of money. While the accident might be a factual cause (“but for” the stress of the accident, the decision might have been different), a court might find that the financial loss from the business decision falls outside the appropriate scope of liability for the negligent driving. The harm might be considered too remote, or of a different kind than what was reasonably foreseeable from a minor collision.

This two-stage approach in CLA Section 5D – separating the factual inquiry (“did the breach cause the harm?”) from the normative or policy-based inquiry (“should the defendant be held responsible for this specific harm?”) – provides a clearer structure for causation analysis than sometimes existed under common law. It ensures liability isn’t imposed solely based on a factual link, but only when it is legally and socially appropriate to do so, reflecting the CLA’s aim of bringing more structured principles to negligence law.

Duty of Care in Real Life: NSW Examples

The general principles of duty of care, breach, and causation apply across countless situations. Here’s how they play out in some common contexts within NSW:

At Work: Workplace Health & Safety (WHS)

Employers in NSW operate under a dual set of obligations regarding worker safety. They owe their employees a common law duty of care to provide a safe workplace, but they also have significant statutory duties under the Work Health and Safety Act 2011 (NSW) (WHS Act). This Act applies to ‘Persons Conducting a Business or Undertaking’ (PCBUs), a broad term covering employers, corporations, self-employed individuals, and others.

The WHS Act imposes a stringent “primary duty of care” on every PCBU. This requires them to ensure, so far as is reasonably practicable, the health and safety of their workers while at work, and also ensure that the health and safety of other people (like visitors or customers) are not put at risk from the work carried out. Determining what is “reasonably practicable” involves a specific assessment weighing factors like the likelihood and degree of harm, what the PCBU knows or ought to know about the hazard and ways to minimise it, and the availability and suitability of ways to eliminate or minimise the risk, including the cost associated with doing so.

Failure to comply with the WHS Act can lead to investigation, enforcement action, and potentially hefty penalties or even prosecution by the state regulator, SafeWork NSW. While a breach of the WHS Act does not automatically give an injured worker the right to sue for damages (civil liability), the standards and requirements set out in WHS law are highly influential in determining what constitutes “reasonable care” when a worker brings a common law negligence claim against their employer. The proactive safety measures required by the WHS Act often inform what a ‘reasonable employer’ (under CLA s5B) should have done. It’s also important to remember that workers themselves have duties under the WHS Act, including taking reasonable care for their own and others’ safety and complying with reasonable safety instructions and policies.

On Property: Occupiers’ Liability

Those who occupy or control premises – whether they are homeowners, renters, shopkeepers, businesses, or local councils managing public parks – owe a duty of care to people who lawfully enter their property. This duty requires the occupier to take reasonable steps to protect entrants from foreseeable risks of injury arising from the physical state or condition of the premises.

Common examples include the duty of a shop owner to manage spills to prevent slips and falls 5, the duty of a local council to maintain footpaths in a reasonably safe condition to avoid tripping hazards, or the duty of a landlord regarding the safety of a rental property.

What constitutes “reasonable steps” depends heavily on the circumstances, applying the balancing test from CLA Section 5B(2) – considering the likelihood and potential severity of harm versus the burden (cost, difficulty) of taking precautions. The duty is not to guarantee absolute safety against every possible hazard, but to act reasonably. While the duty owed to trespassers is generally lower than that owed to lawful visitors, a duty may still exist, particularly concerning known dangers or risks the occupier has created. However, the duty may be reduced or modified if someone enters premises willingly assuming risks or with the intent to commit a crime.

Professionals: Doctors, Lawyers, etc.

Professionals who offer services requiring special skill or expertise – such as doctors, dentists, lawyers, engineers, architects, accountants, and financial advisors – owe a duty of care to their clients. This duty requires them to exercise the reasonable skill, care, and diligence expected of a competent member of their profession practicing in that field.

The Civil Liability Act 2002 contains a specific provision, Section 5O, relevant to the standard of care for professionals. This section provides a potential defence: a professional is not considered negligent if they acted in a manner that was widely accepted in Australia, at that time, by peer professional opinion as competent professional practice. This is sometimes referred to as a modified version of the ‘Bolam test’.

However, this defence has limits. Courts can disregard the peer opinion if they find it to be irrational. Crucially, Section 5O does not apply to liability arising in connection with giving (or failing to give) a warning, advice, or other information about a risk of harm associated with the professional service (this is covered by Section 5P). This means professionals still have a distinct duty to warn clients or patients about material risks, and cannot rely on standard practice as a defence if they fail in this duty. Examples of medical negligence can include surgical errors, misdiagnosis, failure to act on test results, or failing to warn of significant risks. For lawyers, negligence might involve missing critical deadlines, providing incorrect advice, or failing to properly draft documents. The existence of Section 5O means that while professionals are held to a standard of reasonable professional competence, proving a breach against them can sometimes involve navigating specific statutory rules related to peer practice, except when the issue concerns the vital duty to inform and warn.

On the Road: Drivers and Others

The roads are a classic setting for the operation of duty of care. Every user of the road – whether a car driver, truck driver, motorcyclist, cyclist, or pedestrian – owes a duty of care to all other road users. This duty requires them to take reasonable care to avoid acts or omissions that could foreseeably cause injury or property damage to others sharing the road.

Meeting this standard involves complying with traffic laws (speed limits, traffic signals), maintaining adequate control of the vehicle, keeping a proper lookout, driving according to the conditions, and generally exercising the level of care and attention expected of a prudent road user. It is clearly foreseeable that failing to do so – through actions like speeding, drink-driving, texting while driving, running red lights, or failing to give way – creates a significant risk of harm to others. Such actions would almost certainly constitute a breach of the duty of care.

Getting Off the Hook? Common Defences Under the CLA

Even if a plaintiff successfully proves that the defendant owed a duty of care, breached that duty, and caused harm as a result, the defendant might still be able to raise a defence under the Civil Liability Act 2002 that either reduces their liability or eliminates it entirely.

Sharing the Blame: Contributory Negligence

Perhaps the most common defence is contributory negligence. This applies when the injured person (the plaintiff) has also failed to take reasonable care for their own safety, and this failure contributed to their injury or loss.

The plaintiff’s conduct is judged against an objective standard: what would a reasonable person, in the plaintiff’s position, have done to protect themselves, based on what the plaintiff knew or ought to have known at the time?. Examples could include a pedestrian crossing the road without looking, an employee failing to use provided safety equipment, or someone diving into shallow water without checking the depth.

If contributory negligence is established, the court will apportion responsibility between the plaintiff and the defendant based on the degree to which each departed from their respective standards of care. The plaintiff’s damages award will then be reduced by the percentage reflecting their contribution to the harm. The CLA also contains specific, and often quite strict, provisions in Part 6 that significantly limit or prevent recovery of damages if the plaintiff was intoxicated at the time of injury, reflecting a policy of personal responsibility.

Obvious Risks and Voluntary Choices

The CLA places significant emphasis on personal responsibility, particularly concerning obvious risks. An “obvious risk,” as defined in Section 5F, is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff. This includes risks that are a matter of common knowledge, even if they have a low probability of occurring.

Crucially, Section 5G establishes a presumption that an injured person was aware of an obvious risk, unless they can prove on the balance of probabilities that they were not aware of it. Furthermore, under Section 5H, a defendant generally does not owe a proactive duty of care to warn the plaintiff of an obvious risk. There are exceptions, for instance, if the plaintiff specifically requested advice about the risk, if a warning is required by written law, or if the defendant is a professional providing services (linking back to s5P).

Relatedly, Section 5I states there is no liability for harm resulting from the materialisation of an “inherent risk”. An inherent risk is defined as a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. Think of an unavoidable, rare complication during surgery performed with all due care. These provisions collectively shift a degree of responsibility onto individuals to recognise and accept risks that should be apparent, particularly impacting claims arising from recreational activities. This legislative framework reflects a clear policy choice favouring personal responsibility and limiting liability where risks are considered evident.9

Fun and Games: Recreational Activities

The CLA has specific rules in Division 5 (Sections 5J-5N) that further limit liability related to recreational activities (defined as activities engaged in for enjoyment, relaxation or leisure).

Most notably, Section 5L provides a complete defence if a plaintiff is injured as a result of the materialisation of an obvious risk associated with a dangerous recreational activity. A dangerous recreational activity is one that carries a significant risk of physical harm.

Additionally, Section 5M states that a defendant generally owes no duty of care to a plaintiff engaging in any recreational activity (dangerous or not) if the defendant provided the plaintiff with a “risk warning” before they engaged in the activity. This warning can be oral or written and doesn’t need to be specific to the exact risk that materialised; a general warning about the risks of the activity can suffice. Section 5N also explicitly permits parties to waive liability contractually for recreational activities.  These provisions strongly encourage providers of recreational activities to use warnings and waivers and place a significant onus on participants to understand and accept the inherent risks.

Special Cases: Intoxication, Good Samaritans, Volunteers

The CLA includes several other parts dealing with specific situations, often reflecting particular social policy objectives:

• Intoxication (Part 6): As mentioned under contributory negligence, if the plaintiff’s capacity to exercise reasonable care and skill was impaired by self-induced intoxication (alcohol or drugs), Part 6 imposes significant restrictions.1 Generally, no damages can be awarded unless the harm was likely to occur even if the person had not been intoxicated, and the defendant’s liability may still be reduced for contributory negligence. Defendants also generally don’t owe a higher duty of care simply because they know someone is intoxicated.
• Good Samaritans (Part 8): To encourage people to help others in emergencies, Part 8 provides legal protection for “Good Samaritans”. A person who, acting in good faith and without expectation of payment, comes to the aid of someone apparently injured or at risk of injury, is generally protected from civil liability for any act or omission done while providing that assistance.
• Volunteers (Part 9): Similarly, Part 9 protects volunteers doing community work for organisations. If a volunteer acts in good faith while undertaking community work organised by a community organisation, they are generally not personally liable for acts or omissions causing harm. Liability may instead attach to the organisation itself.3
• Criminals (Part 7): Part 7 generally prevents a person from recovering damages if their harm occurred at the time of, or following, conduct that constitutes a serious criminal offence, and that conduct contributed materially to the harm.9
• Apologies (Part 10): Section 69 clarifies that an apology made by or on behalf of a person in connection with an incident does not constitute an express or implied admission of fault or liability and is not relevant to determining fault. This aims to allow expressions of regret without legal penalty.

These specific parts of the CLA demonstrate how the legislation goes beyond general negligence principles to implement distinct policy goals – discouraging certain claims, encouraging altruism, and facilitating communication.

Wrapping Up: Key Points on NSW Duty of Care

Navigating the concept of duty of care in NSW involves understanding both its common law roots and the significant modifications introduced by the Civil Liability Act 2002. In essence:

• A duty of care is a legal obligation to take reasonable care to avoid causing foreseeable harm to others.
• The CLA is the primary legislation governing negligence claims in NSW, overlaying and modifying common law principles.
• Establishing a duty often depends on reasonable foreseeability and the nature of the relationship between the parties, with some relationships having recognised duties.
• The standard of care required is generally that of a “reasonable person,” assessed objectively by considering factors like risk probability, seriousness, the burden of precautions, and social utility (CLA s5B(2)).
• A breach occurs when there’s a failure to meet this standard in response to a foreseeable risk that was “not insignificant” (CLA s5B(1)).
• Causation requires proof that the breach was a necessary condition of the harm (factual causation) and that it’s appropriate for liability to extend to that harm (scope of liability) (CLA s5D).
• Specific rules and considerations apply in contexts like workplace health and safety, occupiers’ liability, professional negligence, and road use.
• Various defences can reduce or eliminate liability, including contributory negligence, voluntary assumption of risk (particularly via the CLA’s obvious and inherent risk provisions), rules for recreational activities, and protections for good samaritans and volunteers.

Understanding these principles is vital for individuals and organisations in NSW to manage their responsibilities and understand their rights concerning potential harm caused by negligence.

Disclaimer: This article provides general information about the law in NSW as a guide only. It does not constitute legal advice. If specific legal advice is required regarding a particular situation, consultation with a qualified legal practitioner is essential.

Frequently Asked Questions (FAQs)

What’s the difference between the duty of care under the WHS Act and the duty of care in a negligence claim?

The WHS Act imposes a proactive “primary duty of care” on businesses (PCBUs) to ensure safety “so far as is reasonably practicable,” focusing on systematic risk management to prevent injuries. Breaching this can lead to regulatory penalties. A negligence claim relies on the common law duty of care (as modified by the CLA) to take “reasonable care.” While WHS standards inform what’s reasonable in a negligence case, the legal tests and consequences differ. A WHS breach doesn’t automatically mean negligence liability, and vice versa.

If a risk is “obvious,” does that mean I can never sue if I get injured?

Not necessarily, but it makes it much harder. Under the CLA, you’re presumed to be aware of an obvious risk, and there’s generally no duty for others to warn you about it (s5G, s5H). If you were injured engaging in a dangerous recreational activity due to an obvious risk, you likely cannot sue (s5L). However, the “obvious risk” provisions don’t automatically negate a duty in all circumstances outside dangerous recreation, though the defendant may argue contributory negligence or that they acted reasonably given the obviousness of the risk.

Can someone still be found negligent even if they followed standard industry practice?

Yes, potentially. While following standard industry practice is relevant evidence of taking reasonable care, it’s not always conclusive. A court might find that the standard practice itself was inadequate or lagged behind known risks or safer methods. However, for professionals specifically, the CLA (s5O) provides a stronger defence: acting in line with widely accepted peer professional opinion (that isn’t irrational) generally protects against a finding of negligence, except regarding the duty to warn of risks (s5P).

Does owing a duty of care mean someone has to prevent any harm from ever happening?

No. The law requires taking reasonable care, not guaranteeing absolute safety or preventing all possible harm. The standard is what a reasonable person would do, considering factors like the probability and seriousness of the risk versus the burden of taking precautions (CLA s5B). Accidents can happen even when reasonable care has been taken, and in such cases, there is no negligence.

How does the Civil Liability Act 2002 affect the amount of compensation someone might receive if their claim is successful?

The CLA significantly impacts damages assessment. For example, it places restrictions or caps on damages awarded for non-economic loss (like pain and suffering) based on the severity of the injury relative to a ‘most extreme case’ (s16). It sets a specific discount rate (currently 5%) for calculating future economic loss (s14). It also imposes thresholds and caps on claims for gratuitous attendant care services (s15). These provisions generally aimed to limit the size of compensation payouts compared to the pre-CLA common law position.