Of all of the community misconceptions about the law that we encounter, “duty of care” would have to be one of the greatest.

Most of the time, I bite my tongue.  No one wants to hear lawyers correcting common parlance all the time.  However, I have heard the term “duty of care” misused one too many times this week.  It seems to strike fear into people’s hearts and I would like to take the opportunity to clarify exactly what a duty of care is within the context of our common law system.

Here are the mistakes I have heard within the media in the last week:-

“Some social media influencers have no duty of care to their followers.”

“My employer has shown no duty of care towards me.”

“Where is the government’s duty of care to taxpayers.”

History

Under English law, there used to be a mish mash of laws that allowed people to sue others for damage they suffered.  Most of them were grounded in contract law.  There are various limitations in contract law.  Perhaps most importantly is the issue of privity of contract.  You actually have to be a party to a contract to be able to sue under it traditionally.

The entitlement to make a claim for damages for personal injuries dates back to the famous case of Donoghue v Stevenson in the House of Lords in 1932.  Fun fact – the lead judgment was delivered by Lord Atkin who was born in Brisbane.

The Plaintiff in that case, suffered an injury when she drank ginger beer from a bottle that contained a decomposing snail.  She had not bought the bottle of ginger beer so she could not sue in contract.  Radically, the House of Lords found that the manufacturer of the ginger beer owed her a duty of care which was independent of any contract of sale.

Lord Atkin emphasised that breaching moral codes of conduct were not enough to give rise to a right to claim damages.  In 1932 and for ever after, the Courts have been concerned with opening the floodgates of litigation.  There had to be limits on circumstances where there could be legal redress for wrong.  He famously delivered his neighbour principle by saying:-

      The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

Current Law

The law has developed since 1932 to the point where in most cases, it is clear where there is a duty of care.  There are several established relationships where a duty of care exists.  Those relationships are most commonly:-

  1. Employers owe a duty of care to employees;
  2. Road users owe a duty of care to other road users;
  3. Occupiers of premises owe a duty of care to entrants to the property;
  4. Doctors owe a duty of care to their patients.

The scope of the duty varies between different relationships.

There are other relationships where a duty of care may be found.  However, there is no “good samaritan” law a la Seinfeld that places a duty on you to save someone completely unconnected with you from a risk even if you are aware of the risk.  That duty is a moral and not a legal one.

I am unaware of any case law in Australia in which a social media influencer has been found to owe a duty of care to their followers.  In any event, an influencer will either owe a duty of care or they will not.  I suspect the commentator who suggested that “some influencers do not have a duty of care to their followers” in fact meant that some influencers are breaching a hypothetical duty of care to their followers.

All employers owe a duty of care to employees. The standard of care expected of an employer to employees is very high but it is not something that an employer can “show” to their employees.  It might be that an employer fails to discharge the heavy duty but there is not any particular action on the part of the employer which will show whether or not they owe a duty of care.

The government owes a duty of care to all of us in different contexts.  When it is an employer, it owes a duty of care to its employees just as any other employer.  When it is a road authority, it has a duty to take action in certain circumstances to avoid hazards to road users.  When it is the occupier of premises, it owes a duty of care to entrants to the premises.  However, it does not owe a duty of care when it comes to expenditure of public funds.  It is only accountable for those decisions at the ballot box.

I hope that clarifies a few “duty of care” myths.  If you are in doubt as to whether the person who has caused or contributed to your injury owed you a duty of care – feel free to ask us.