M1 - Learner Manual

8.3. Researching and applying duty of care requirements towards clients and other stakeholders- the tort of negligence

An introduction to tort law

The term ‘torts’ is applied to a miscellaneous and more or less unconnected group of civil wrongs other than breach of contract. The law of torts is concerned with the compensation of losses suffered by private individuals in their legally protected interests. Unlike criminal proceedings which are commenced by the police, proceedings for a breach of a tort law are brought by an individual against another individual or organisation. Torts may serve to protect a person’s interest in his or her bodily security (e.g. the torts of battery, assault & false imprisonment), tangible property & financial resources (e.g. the torts of trespass & negligence), use of land (e.g. tort of nuisance) or reputation (e.g. tort of defamation).

In the course of providing legal services to a client, either in the capacity of a legal practitioner or a legal support office, you owe the client a duty of care. Duty of care here refers to the obligation of the party providing the legal service/s to avoid causing damage or loss to the client, where that damage or loss could have been reasonably foreseen. Understanding the concept of negligence and the various elements of the tort is important when purporting to provide any type of services to a client, especially those of a professional nature.   

What is negligence?

Legally speaking, negligence is a failure to take reasonable care to avoid foreseeable harm to other people or their property. This is not to say that negligence is a failure to achieve perfection. The law recognises there are certain accidents that are unavoidable and for which legal blame should not be allocated. However, negligence may result from a ‘failure to exercise the degree of care and skill that could reasonably be expected in the circumstances from someone with the particular profession’s training, skill and experience’[1].

Elements of Negligence

Defendant owed a duty of care to the plaintiff to take reasonable care to prevent him/her from suffering injury, loss or damage.

There was a breach of the duty of care by failing to adhere to the standard of care expected.

The breach of duty caused damage to the plaintiff and damage that was of a kind which was reasonably foreseeable (i.e. was not too remote)

These principles were laid down in the English case of Donoghue v Stevenson [1932][2] and were adopted in Australian law in Grant v Australian Knitting Mills in 1933 by the High Court. 

In every case involving negligence, the Plaintiff must establish 3 elements:

Did the defendant owe the plaintiff a duty of car?

Is it reasonably foreseeable that the defendant’s act or omission could have caused harm to the plaintiff (or the class of person to whom the plaintiff belongs)?

Is there sufficient proximity between the defendant and the plaintiff?

The duty of care test is objective: whether an ordinary, reasonable person in the circumstances of the defendant could have foreseen that loss or injury could occur.

Was there a recognised relationship? Such as employer-employee, manufacturer-consumer, lawyer-client, doctor-patient.

Did the defendant breach that duty of care?

The Court will consider the following factors in deciding whether a duty of care has been breached:

• Likelihood of injury (in negligence, a person cannot be liable for failing to take precautions against an unforeseeable risk[3])

• Gravity of harm

• Degree of effort to eliminate the risk

• Social worth of Defendant’s conduct

• Accepted standard (the defendant’s conduct is to be judged by the standard of care that a prudent person would have exercised in the circumstances).

Did the breach cause the damage?

The defendant’s wrongful act must have caused or contributed to the harm for which the plaintiff seeks damages. Determining questions of causation can prove difficult in a great many circumstances. As an example, on the way to work person A accidentally runs over a cat, five minutes later person B stops to tend to the cat, person B arrives late to work and is fired as a result, is person A then the cause of person B being fired? In certain ways one might think this is so, yet in other ways it seems a ridiculous conclusion to draw.  Determining whether the actions or omissions of one person/organisation are the cause of particular damage or loss to another person/organisation for the purpose of establishing legal liability is a complex task. 

One approach the courts in Australia have taken over the years is the application of a ‘but for’ test- ‘but for’ the act or omission of person A, person B would not have suffered the injury or loss in question. Put differently, ‘If the damage would have occurred notwithstanding the negligent act or omission, the act or omission is not a cause of the damage and there is no legal liability for it[4]’. Another way the courts have addressed the question of causation, is by determining whether it was reasonably foreseeable that person A’s actions would have caused the harm or loss experienced by person B in the given circumstances. [5]This test holds the same as the objective test in the breach of duty. 

Negligence in legal practice

Lawyers owe their clients a duty of care. Clearly, the mere fact that a lawyer fails to achieve a client’s desired outcome does not, of itself, mean that the lawyer was negligent. However, a lawyer who fails to provide a legal service to a client with at least reasonable care and skill, causing the client to suffer financial or other loss, may well have breached his or her duty of care. Breach of this duty may amount to negligence and the client may be entitled to compensation for the loss.[6]

Further to this, a legal practitioner may be in breach of a statutory code or professional standard impacting on the jurisdiction(s) in which they operate. In Queensland, the Legal Profession Act 2007 refers to unsatisfactory professional conduct as including “conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner”. [7] The Act also goes on to define professional misconduct as involving a substantial or consistent failure to reach that same standard. This is therefore generally more serious and less likely to be a “one-off”, accidental oversight or failure. [8] Breach of these rules may result in disciplinary action by the relevant regulatory body (e.g. suspension, disqualification or termination of practicing certificate).

How the tort of negligence impacts on legal support staff (i.e. field officers, paralegal officers, and administrative officers) 

We owe a duty of care to others in a great many different circumstances throughout our lives. In a professional context, it is mainly the responsibility of the employer (i.e. the organisation) to ensure that employees are aware of relevant codes of conduct and professional standards. Where there is an alleged breach of confidentiality or negligence on the part of a legal support officer, typically the employer will be vicariously liable for the employee’s action. Regardless, it makes a great deal more sense for complainants/applicants to go after employers, as they generally have more money than respective employees. The usual elements of negligence apply in the context of any role you may fill in a legal organisation. All legal support workers should be aware of the duty they owe their clients and must be capable of performing those duties to a reasonable professional standard. 

 Employees are generally protected by their employer as long as they follow policies and reasonable instruction. Where an employer will not be vicariously liable for damage or loss incurred by a client, is when an employee acts outside the course of their employment..[9] Particular circumstances where an act is outside the course of employment include:

Passion and resentment – A barmaid threw a glass filled with beers at a customer as she was angry at this foul behaviour[10]

Unconnected acts – employee on a ‘frolic of his/her own’[11]

Employer prohibitions – express limits on conduct within sphere of employment[12]

Criminal acts of employees – employer may still be liable usually considered a personal issue.[13]

Vicarious Liability

Vicarious liability refers generally to a situation where someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that these actions took place in the course of their employment. If those actions are found to be unlawful, both the employee responsible for the action/s and the employer or principal may be held responsible. That is, unless an employer can show that ‘all reasonable steps’ were taken to reduce liability or that the employee was acting in a personal capacity (i.e. they were acting outside the course of their employment).^[14]

What does ‘all reasonable’ steps mean?

‘All reasonable steps’ is not defined in the legislation as what is reasonable for a large corporation may not be reasonable for a small business. Rather it is worked out on a case-by-case basis. This means employers must actively implement precautionary measures to minimise the risk of employees acting in an unlawful manner in the course of their employment.