Duty of Care:

“Duty of care” is an element of a claim in negligence against a builder. It can also be expressed as a standard of care, or as the professional standard according to which members of the public expect professionals to conduct themselves and their business. It is difficult to establish a case in negligence, and claims that go to Court are often hotly contested with both sides adducing copious evidence, and even expert reports, largely because the duty of acre component of the claim is so vital to grounding a successful action in negligence. This is enhanced where the claim is in professional negligence because the standard will ordinarily be measured at a higher rate. This will make establishing a breach even more difficult.

Determining the duty of care can be a tricky process. The public expectations of appropriate conduct may be gleaned from the policies or other operational documents of a body that represents the profession in which the accused is practicing. Sometimes those bodies are voluntary, other times they are mandatory. The requirements of voluntary bodies may have a lesser value in the eyes of a Court in establishing what the appropriate professional standard should be.

Other bodies that may assist are government or statutory institution which regulate or administer the profession. Broadly speaking, such organisations may have a Code of Ethics, or a Code of Conduct which applies to the work being done by the professional. They may also have various policies that address the specific aspects of the job that the professional may be contracted or duty bound to do. Of course, the contract or agreement under which the job is assumed b the professional may have very specific requirements which will also help in determining whether a professional standard, and therefore the duty of care, has been breached.

Solicitors dealing with duty of care issues, particularly in the building and construction industry, will have experience in a wide range of litigation practice areas: both civil and commercial. This is because building and construction claim, although they may have a commercial flavour, may very well also contain aspects that are relevant to civil claims or require attention to other principles of law, general contract interpretation being the most obvious. In all negligence cases, the first thing that need to be established is whether or not there exists a duty of care, and only after this can the standard be investigated and causation argued. Assuming these elements have been satisfied at law, and given that there has been loss or damage suffered by the aggrieved party, a case in negligence can be filed. Nevertheless, none of this will succeed if the fundamental elements of duty of care have not been properly proven. Whether a party is a builder being sued, or a prospective owner of property suing a builder, diligent legal investigations need to be conducted and the relevant legal advice provided before any action can be taken at law.

The negligence team at Navado understands that litigation can be an expensive affair. Most individuals who suffer injustice do not have the resources to litigate their disputes, and duty of care disputes are no exception to this. The general protocol that the negligence lawyers at Navado follow is to prepare a case and understand the relevant strengths and weaknesses before first approaching the other side to negotiate a resolution of the duty of care dispute. Only if these preliminary attempts at resolution fail will litigation over a breach of duty of care be contemplated and advised.

If you require assistance with a duty of care dispute in your building and construction matter you may wish to contact our firm by telephone on (02) 9233 4048 or send an email to info@navado.com.au and make an appointment to see one of our solicitors. 

This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.