Duty of Care - Definitions
Duty of Care
Duty of Care is a duty to take reasonable measures not to cause foreseeable harm to other persons.
Having a Duty of Care simply means being in a position where someone else is likely to be to affected by what you do or do not do, and where, if you are not careful, it is reasonably predictable or "foreseeable" that the other person might suffer some harm.
The main source of your Duty of Care come from the Work Health and Safety Act 2011 (QLD) ("WHS Legislation"). It places the primary health and safety duty on the Person Conducting the Business or Undertaking, who must ensure (as far is reasonably practicable) the health and safety of all workers while at the workplace. It also places a duty n Employees while at the workplace.
Whilst the legislation is not entirely clear, it seems best for Employers (as the term is used in these articles) to assume that they are a Person Conducting Business and Undertaking ("PCU"). For the reminder of these articles, references to Employer will also mean a PCU.
A responsibility to take reasonable care arises where:
- Injury or harm is foreseeable;
- There is proximity in the relationship of the parties; and
- There is proximity in the action or omission and the injury sustained.
Standard of care
What would be "reasonably practicable" in the circumstances?
Breach of Duty of Care
Failing to do what is "reasonably practicable" to eliminate or minimise risk to health and/or safety, or doing something that is unreasonable.
What could reasonably have been done at a particular time to ensure that health and safety measures were in place.
Harm, loss or injury
Physical harm, economic loss, or psychological trauma that is directly attributable to the breach of the Duty of Care.
Harm can be defined as injury or damage and includes physical, emotional, financial or psychological loss. It can include:
- Breach of trust;
- Emotional trauma
- Fear of incompetence (other staff);
- Embarrassment; and/or
- Long term damage to reputations or standing in the community, their value as a citizen, in the eyes of others.
Support staff can reasonably be expected to be able to identify risks and problem-solve possible courses of action to minimise harm. Employees should explore possible harm form the perspective of the person with a disability / the Employer.
Any place where work is carried out and includes any place where a worker goes or is likely to go while at work. This could mean in a person's home, a motor vehicle or in a community setting.