Duty of CareLegal Services

Duty of Care

January 2000

2

AcknowledgementsPublished by Legal Services, Victorian Government Department of Human Services,Melbourne Victoria.

January 2000

(0310999)

Duty of Care

3

Introduction 5Disclaimer 5Duty of Care 5Who this policy applies to 5

Negligence 7Definitions 7Duty of Care 7Breach of duty of care 8Injury 8

Reasonableness 9What is reasonable 9Risk of harm 9Seriousness of harm 10Precautions 10Powers 11Purpose of the activity 12Statutory requirements 12Professional standards 13

Summary of Negligence 14Guidelines 14Conclusion 14

Non-Delegable Duty 16Introduction 16Delegating activities or duties 16Special relationships 16Funded agencies 17

Liability of Department Staff 19Department acts through employees 19Vicarious liability 19Parties and witnesses 20

CONTENTS

Duty of Care

5

DisclaimerThis paper is intended to provide a broadunderstanding of the law governing theduty of care owed by the Department and,in some cases, by agencies engaged by theDepartment. It contains statements of broadprinciple and should not be understood asproviding a comprehensive analysis of thelaw. Legal advice in relation to particularcases should be sought from the LegalServices Branch.

Duty of CareThe law of negligence affects the way theDepartment and agencies who deliverservices on behalf of the Department goabout providing services to various parts ofthe community. It sets minimum standardsfor the Department and those agencies inthe way that they deliver these services. TheDepartment staff may know of this conceptas ‘duty of care’.

Most of the Department’s clients arevulnerable in some way because of theirage, state of health, social circumstances orother factors. This vulnerability affects thecare the Department must take to avoidbeing found legally liable for negligence.

The Department contracts with manyagencies and community organisations todeliver many of its services. When theseservices are contracted out by theDepartment, the Department remainsresponsible for the services to clients.

The Department is not able to delegate itsresponsibilities in relation to statutoryclients. These responsiblities give theDepartment a non-delegable duty of care.This is dealt with later in these guidelines.

The law of negligence does not create ‘no-win’ situations for anyone. Contrary topopular misunderstandings, it does notimpose impossible burdens upon staff orrequire anyone to be perfect. Nor does itexpect anyone to be clairvoyant.

The only ‘burden’ imposed on theDepartment and its agents by the law ofnegligence is the requirement to actreasonably. If it does not act reasonably andpeople are injured, the Department will beheld accountable. It is in the interests of itsclients, as well as consistent with its legalobligations, that the Department behavesreasonably in delivery of its services toavoid injury to those clients.

Who this policy applies toThis policy applies to all the Departmentemployees and all agencies which provideservices for the Department, whether or notthey work in direct contact with clients.Employees must comply with the law ofnegligence in all aspects of their work.

Introduction

Duty of Care

7

DefinitionsThere are three parts to the definition ofnegligence and all three elements must bepresent in any situation for the Departmentto be considered negligent by a court:1. Duty of care. The Department must owe

a duty of care to a particular person.2. Breach of duty of care. The Department

must have done something a reasonableperson would not have done in aparticular situation or omitted to dosomething which a reasonable personwould have done.

3. Injury. Some harm must have beencaused to the person because of theDepartment ‘s unreasonable action.

A detailed explanation of the definitionfollows.

Duty of CareA duty of care is a duty to take reasonablecare of a person.

The Department owes a duty of care toanyone who is reasonably likely to beaffected by the Department’s activities.These may be:• Clients.• The families and carers of clients (for

example, where they are injured as aresult of a psychiatric crisis team failingto respond in a reasonable time).

• Certain groups of people in thecommunity (for example, people livingnear a youth training centre who could beaffected if a dangerous client escaped).

Department staff must take reasonable care to avoid causing injury to each of these categories of people in the delivery of its services.

Duties of care can be owed by differentlevels of Department employees in anyparticular situation. Program directors,regional directors, local managers,supervisors, direct care employees andhealth professionals will all owe duties ofcare to the three groups of people listed.

A child in the care of the Departmentmay be injured because:•The protective worker did not properly

supervise a family group homeplacement of the child.

•The employee’s supervisor did notprovide sufficient direction andguidance to the employee insupervising the placement, and/or

•The placement and support managerhad received reports that the familygroup home parents were not meetingsome of their responsibilities in lookingafter children generally, but had nottaken any action to ensure that thoseconcerns were addressed and that thelevel of care improved.

Each employee will be expected to dodifferent things to ensure that their dutyof care is not breached.

Negligence

Duty of Care

8

Breach of Duty of CareA duty of care is breached if a personbehaves unreasonably.

Failure to act can also be unreasonable in aparticular situation.

A duty of care can be breached either byaction or inaction.

The reasonableness of what a person hasdone, or not done, is assessed byconsidering how a hypothetical reasonableperson would have behaved in the samesituation. If the person’s job requires special skills or training, the hypotheticalperson will be assumed to have the sameskills or training.

This means that a manager’s actions will bemeasured against the actions of a reasonablemanager, the actions of a protective workerwill be judged according to those of areasonable protective worker, the actions ofa health professional will be judgedaccording to those of a reasonable healthprofessional and so forth.

Judging how reasonable a person’sbehaviour has been depends in part on thetype of relationship between the two people.The closer the relationship between theDepartment and the person, or the moredependent the person is on the Departmentfor their welfare, the more the Departmentwill be required to do to ensure the person isnot injured by its actions.

What is considered reasonable will dependon all the circumstances. What is reasonablein one situation will not necessarily bereasonable in another. There cannot be acomplete set of ready-made answers to allthe dilemmas and situations that could arisein any program area.

An important element in determiningreasonable behaviour is the knowledge ofthe situation. The Department may haveinformation about particular clients orpremises. If that knowledge is authorisedand available to the particular area of theDepartment it must be taken into account inconsidering what action to take. It is nodefence to say the particular employee wasunaware of Department information.

InjuryThe final part of the definition of negligenceis that there must have been some harmcaused.

The only kinds of harm recognised so far bythe courts have been physical injury,nervous or emotional shock and financialloss. Unless a person suffers an injury of oneof these kinds, there will not have been anynegligence by the Department as far as thelaw is concerned.

The harm must be caused by theunreasonable actions of the Department forthe Department to be liable for negligence.

Duty of Care

9

What Is ReasonableWhile there are no predetermined answersto questions about whether or not an actionis reasonable, there are a number of factorswhich must be considered each time anemployee makes a decision. Staff must usetheir professional skills and experience todecide the weight to be given to each factorand to make a final decision about the mostreasonable action in a particular situation.

The factors to consider are:• The risks of harm and the likelihood of

the risks occurring.• The sorts of injuries that may occur, and

how serious they are.• Precautions which could be taken.• The powers which Department

employees have. • The usefulness of the particular activity

which involves risks.• Any statutory requirements or specific

directions from the Department. • Current professional standards about

the issue.• Any other factors relevant to a particular

situation must also be considered.

This list of factors must be used byDepartment staff to ensure reasonabledecisions are made by the Department. No single factor can be relied upon by itselfto justify acting in one way rather thananother. All factors will need to be consideredtogether to determine what is reasonable.

The fact that a client gives their consent orexpresses a wish to do a particular thingdoes not justify the Department or anagency acting unreasonably to help theclient perform that activity. The Departmentmust act reasonably in the way it uses itspowers and the consent of a client does notalter this.

Risk of HarmStaff are expected to take steps to avoidreasonably foreseeable risks of injury. Noone will be found negligent for failing toprevent a completely far-fetched orimprobable risk of harm to a client, butemployees will need to assess the risks ofparticular activities sensibly.

If an appropriate health professional is considering whether to allow a psychiatric in-patient to have weekendleave, there is a risk that the person maysuffer a deterioration in their conditionover that time. The health professionalwill need to use his/her professionaljudgement to assess the likelihood of this happening.

However, there are other risks in the per-son having weekend leave. The personmay be seriously injured while travellingon a bus which is involved in an acci-dent. The health professional would notneed to consider this risk in decidingwhether it would be reasonable to grantleave, assuming the likelihood of such anaccident is remote.

Before undertaking any activity withclients, staff must consider the risks ofharm to clients and the likelihood ofharm occurring. Staff will have to usetheir professional judgement in decidingthese matters.

Reasonableness

Duty of Care

10

Seriousness of HarmThe less serious the harm that could resultfrom a particular activity, the more reasonableit may be to take the risk. Conversely, themore serious the harm (for example, seriousinjury or death), the less reasonable it may beto undertake the activity.

There is a risk of physical injury in play-ing netball. A player may be bumped,bruised or fall over during the game.These injuries are usually not seriousand, after considering the other factors, itmay be reasonable to allow clients toplay. However, if the sport being consid-ered was sky diving, the kinds of injurypossible are much more serious and allthe other factors would have to be con-sidered to assess whether it was reason-able to take that risk.

The consequences of harm may also varyfrom person to person. For example, a clientwith asthma risks more serious harm than anon-asthmatic client by doing strenuousactivities on ‘smog-alert’ days. A decision-maker will be taken to have constructiveknowledge of any particular vulnerabilitiesknown to the Department.

Staff must consider the seriousness of anypotential harm to clients.

The more serious the harm which couldresult, the less likely it will be that the riskshould be taken, depending on the otherlisted factors.

Staff must use their professional judgementin assessing the seriousness of injurieswhich could occur.

PrecautionsThe availability of precautions must beconsidered. If the risks of harm from anactivity can be reduced or eliminated bytaking relatively simple precautions, then itwill not be reasonable to proceed withouttaking those precautions.

If there are no feasible precautions that canbe taken, then this must be considered,along with all the other factors, in decidingwhether it is reasonable to go ahead.Employees must use their professionaljudgement to assess whether there areprecautions which could be taken in anyparticular situation.

If an involuntary psychiatric in-patientwho cannot swim wants to go to a swim-ming pool, there are a number of precau-tions that could be taken to ensure theydo not drown. These include allowingthe client to go in the water only if close-ly supervised at all times by at least onestaff member, or requiring the client towear a life jacket and also be supervisedat all times.

The ultimate precaution, of course, is notto allow the client to go in the swimmingpool.

Rather than deny the client this opportu-nity, it would be preferable to have staffclosely supervise the client in the pool, orhave the client wear a life jacket and besupervised by staff. However if neither ofthese less restrictive precautions is possi-ble, the staff must take the next availableprecaution, that is, not allow the client togo in the water.

Duty of Care

11

Staff must take all reasonable precautionswhich could avoid or reduce the risk ofharm to clients.

Where there are a number of effectiveprecautions which would reduce the risk ofharm, staff must choose the option which isleast restrictive to the client.

Again, staff will need to use theirprofessional judgement to assess whatprecautions are available and which are theleast restrictive.

The law of negligence does not requireevery and all precautions to be taken. If thecost of a precaution far outweighs the levelof risk to be avoided, the law does notnecessarily require the precaution to betaken. The law recognises that resources are scarce.

The cost of prevention of harm is an issuethat a Court would take into account inconsidering whether or not there has beennegligence.

Similarly if, for example, the Departmentwas aware that a complaint had been lodgedabout some aspect of a residential supportservice which caused harm to a client and asecond client was injured and theDepartment had taken no action on theinitial complaint, the Department is likely to be found negligent.

PowersPrecautions which can be taken may dependon the powers of the employee in anyparticular situation. The Department mustdo what is reasonable within its legalpowers. The Department or its agentscannot be expected to do things it does nothave the power to do. The law of negligence

does not give the Department (or anyoneelse) extra legal powers.

The Department’s powers come from theActs of Parliament it administers. Some ofthe major Acts are:• Adoption Act 1984• Ambulance Services Act 1986• Children and Young Persons Act 1989• Community Services Act 1970• Disability Services Act 1991• Health Services Act 1988• Health Act 1958• Housing Act 1983• Intellectually Disabled Persons’ Services Act

1986• Mental Health Act 1986• Residential Tenancies Act 1997• Sentencing Act 1991.

Certain employees have very limitedpowers under these Acts to lock up orphysically restrain clients to protect themfrom harm. More details about how thesepowers are used are contained in guidelinesprepared by the relevant program areas.

All employees also have ‘emergency’ or‘rescue’ powers enabling them to save aperson from a dangerous situation. Thesepowers allow an employee to prevent harmto someone by touching or even brieflyphysically restraining them without theirconsent. These ‘rescue’ powers are limited toemergencies.

Emergencies are sudden, unexpected anddangerous situations which do not happenoften. If a particular, dangerous situationarises often, Department employees will beexpected to take reasonable action to reducethe likelihood of the ‘emergency’ happeningin future, as well as using their ‘rescue’powers if it should happen again.

Duty of Care

12

The limits on the Department’s powersaffect the precautions staff can take, or willbe expected to take, to avoid injuries toclients and others. The law does not expectemployees to do anything they do not havethe power to do.

If an intellectually disabled woman livesat home and sleeps on the front lawn, theDepartment or an agency does not havethe power to physically move her fromthe lawn. Of course, staff may discuss theissue with the woman and her parents orcarers and encourage a change in behav-iour to prevent harm to her. If that is notsuccessful the Department or its agentshave the power to notify the Office of thePublic Advocate of any concern it hasabout the welfare of a person with anintellectual disability. The Department orits agency would need to act reasonablyin deciding whether or not to do this.

Department staff must ensure they areaware of their powers and must act with-in those powers.

When exercising their powers theDepartment and its agents must actreasonably.

Purpose of the ActivityIf there is little benefit for a client from aparticular activity and it involves real risksof serious harm to the client, then it wouldnot be reasonable to proceed with theactivity.

However, if there is a real benefit to begained from doing something and the risksof serious harm are relatively small, then it

may be reasonable to take those risks withproper precautions.

There are minor risks of cuts or burnsinvolved in learning to prepare meals,but with proper training and supervi-sion, the risks may be worth taking.There are risks in some clients living incommunity housing rather than in insti-tutions, but as long as appropriate pre-cautions are taken, the risks may beworth taking.

Staff must consider the purpose of anyactivity which may cause harm to a client.

The fact that an activity is useful will not byitself justify putting a client at risk of harm.If an activity carries a high risk of seriousharm and there are no effective precautionsavailable, then the activity must not beundertaken.

However, where the risks of an activity arenot high, the types of possible injury notserious, or there are effective precautionswhich could be taken, the purpose of theactivity may be relevant in deciding that theactivity is reasonable.

Staff must use their professional judgementto assess the purpose or usefulness of anactivity.

Statutory RequirementsIf there are statutory requirements orspecific directions from the Departmentabout any particular matter, employees mustcomply with them. For example, section44(5) of the Intellectually Disabled Persons’Services Act requires the supply of bedding

Duty of Care

13

and clothing, food and drink, and provisionof toilet facilities when a client is kept inseclusion. If these requirements are not metand a client suffers injuries because of this, it would be very hard to argue that theDepartment or its agent has behavedreasonably.

However, compliance with any statutoryrequirements or directions will notnecessarily be the end of the matter. It maybe reasonable to do more. A person may doall that is set out in an Act or Regulation ordirection from the Department and still nothave done as much as the reasonable personwould have done.

It may be reasonable to provide a clientbeing kept in seclusion under section44(5) of the Act with more than the goodslisted in the Act. The client may beknown by staff to need regular medica-tion. In that case, a reasonable employeewould ensure that the client was able totake medication at the relevant times,even though section 44(5) of the Act doesnot require this.

Statutory requirements and directions fromthe Department must be followed by staff. Ifadditional action in a particular situationwould be reasonable, such action must alsobe taken.

It is up to Department employees to decidewhether it is reasonable to do more than isrequired in guidelines or by statute. Thisdecision must be made on the basis ofemployees’ professional training and skills.

Professional StandardsThe prevailing standards of the relevantprofession will also be taken into account indeciding whether a person has behaved in areasonable manner, as long as thosestandards are themselves reasonable.

However, compliance with reasonableprofessional standards will not necessarilybe all that is required in an individual case.The facts should be examined to determinewhether, in that particular situation, itwould have been reasonable for a person todo more than, or other than, comply withthe standards.

Staff must comply with current professionalstandards and practices, where thosestandards and practices are themselvesreasonable.

Staff must also consider whether, in aparticular situation, it would be reasonable to do more than the standards or practices require.

This decision must be made by theemployee and supervisor on the basis oftheir professional skills and experience.

It is Department policy that professionalstandards or practices will not be consideredto be reasonable if they expose a client to areal risk of serious harm and there are noeffective precautions which can be taken toreduce the risk of injury.

This means that if there is a real risk that a client will suffer serious harm, and thereare no reasonable and effective precautionspossible, then the activity must not beundertaken.

Duty of Care

14

GuidelinesThere is no neat, convenient solution to allthe issues raised by the Department’s dutyof care to its clients and others. The simplestguide is that as long as employees behavereasonably, the Department will not befound to have acted negligently. Similarly, as long as the Department has appropriatesystems in place to assure itself that agenciesalso act reasonably in work with clients, theDepartment will not be found to have actednegligently.

One of the best ways to ensure that reasonguides the Department’s actions is todevelop guidelines and case practicestandards for services. The more thought,preparation and planning that has gone intosomething, the easier it will be to show thatwhat was done was reasonable. This appliesto planning for one-off foreseeable risks,such as taking clients on an unusual outing,as well as for the normal running ofprograms and services.

An increased awareness and greaterdiscussion of the issues will also betterequip staff to deal with incidents as theyarise and make reasonable on-the-spotdecisions about what to do in individualsituations.

Guidelines and procedures should bedeveloped for all relevant aspects ofDepartment services. These guidelinesshould be prepared whether or not incidentshave already occurred. The documentsshould cover the factors listed in this policy(where they can be anticipated), particularlythe risk of harm to clients and others,precautions that can be taken, the purposeand benefits of the activities and relevantlegislation or directions from the Department.

The guidelines should require that writtenrecords are kept of any decisions madewhich could lead to injuries to clients orothers, together with the factors taken intoaccount in making those decisions. It is notnecessary to write down every decisionmade by every staff member. Commonsense should dictate those that should berecorded for possible discussion or review ata later stage.

ConclusionDepartment staff must take reasonable careto avoid causing injury to:• Clients• Families and carers of clients• Any other person who is likely to be

affected by the Department’s actions.

When making decisions about thereasonableness of any action, the followingfactors must be taken into account:• The risks of harm and the likelihood of

the risks occurring.• The sorts of injuries that may occur, and

how serious they are.• Precautions which could be taken.• The powers which Department

employees have. • The usefulness of the particular activity

which involves risks.• Any statutory requirements or specific

directions from the Department.• Current professional standards about

the issue.

Any other factor which is relevant in aparticular situation must also be taken intoaccount.

The factors all need to be consideredtogether to determine what is reasonable.No single factor can be relied upon by

Summary of Negligence

Duty of Care

15

itself to justify acting in one way rather than another.

Department staff must use their professionalskills and experience to make decisionsabout the weight to be given to each of thefactors listed above. This professionaljudgement must also be used to make a finaldecision about the most reasonable action ina particular situation.

The fact that a client gives their consent orexpresses a wish to do a particular thingdoes not justify the Department actingunreasonably to help the client perform thatactivity. The Department must actreasonably in the way it uses its powers andthe consent of a client does not alter this.

Guidelines and procedures should bedeveloped for all relevant aspects ofDepartment services. These should beprepared whether or not incidents havealready occurred. The documents shouldcover the factors listed in this policy (wherethey can be anticipated), particularly the risksof harm to clients and others, precautionsthat can be taken, the purpose and benefits of activities and relevant legislation ordirections from the Department.

The guidelines should require that writtenrecords are kept of any decisions madewhich could lead to injuries to clients orothers, together with the factors taken intoaccount in making those decisions.

Duty of Care

16

IntroductionWe have considered the Department’s directduty of care a breach of which causesnegligence. The Department also has whatcan be understood as an indirect duty ofcare. That indirect duty of care is known as anon-delegable duty.

Delegating activities or dutiesThere is an old saying that “you cannot giveaway what you don’t have,” and this is true.But it could also be said quite correctly thatjust because you have something doesn’tmean you can give it away. It may beconsidered so personal, for whatever reason,that it ought properly remain with you.

This is what the concept of non-delegableduty is all about. Sometimes the law says aduty cannot be delegated. As such it willstay with the original person or body. This istrue even though the original person tries todelegate it to someone else.

This will not prevent the original persongetting someone else to perform the duty(for example, by contracting out the work),but if something goes wrong theresponsibility will stay with the originalperson or body.

The court has explained it in these terms:

“Where one person becomes liable to perform,or undertakes the performance of a duty toanother, it is quite immaterial (as betweenhimself and that other) whether he performsthe duty himself or employs an agent, or anindependent contractor to perform it. Theliability (whatever it may be) for the properperformance of the duty adheres to the personwho undertook it; he cannot get rid of it.”

The original person is not vicariously liablefor the contractor’s negligence. Rather, the

original person is responsible for notfulfilling his own duty. The obligation isonly fulfilled by exercising the dutyproperly (for example, using due care andskill). It is not fulfilled by entrusting itsfulfilment to someone else.

Special RelationshipsThis concept has been applied to specificrelationships. It applies, for example, to therelationship between employer andemployee, school authority and pupil,hospital and patient, and welfare authorityand ward. The essential features to look outfor are control and responsibility on the oneside and, from the perspective of the personto whom the duty is owed, specialdependence or vulnerability on the other.

Employers and government agencies (actingas employer, provider and /or purchaser ofservices) need to ensure that people are notput at risk from the conduct of theirundertaking. This means that theDepartment must ensure so far aspracticable that the way in which it conductsits operations does not put any person (sub-contractors and members of the publicincluded) to a risk to their health and safety.

An example of this general duty of carewas the prosecution of a local council following an incident involving injuriesto students from the collapse of a wall atan indoor swimming centre. The failureof the council to ensure the proper con-duct of work by a series of contractors,and to ensure the safety of the outcomeof those works, represented a breach ofthe duty of care owed by it to the mem-bers of the public attending the centre.

Non-Delegable Duty

Duty of Care

17

Another example of this duty is the fireat Kew Residential Services. Such wasthe relationship between the State andthe residents, hence the duty owed bythe State, that the duty was found to benon-delegable. It was one of those cate-gories of cases in which a duty to take allreasonable care could not be dischargedmerely by engaging qualified and osten-sibly competent independent contractors.There was a relationship of proximitywhich gave rise to a duty of a special andmore “stringent” kind, namely a “duty toensure that reasonable care is taken”.

Arguably, the same duty of care wouldapply to a myriad of situations where acouncil, or agency, contracted out someservice or task which impacted on membersof the public, either directly or indirectly,and the performance of which wasnegligent. It may be services to the disabled,the elderly, or the young, for example.

Funded agenciesSuch a relationship does not necessarily shiftfull responsibility to the external agencypaid to deliver those services.

The Department’s reliance on fundedexternal agencies to provide services toclients and others means the concept of non-delegable duty is of particularimportance.

It becomes necessary here to work out whohas the personal relationship with whom,the original provider or the personcontracted to provide the service to whomeffective control seems to have passed.

Relationship is important. Relationshipdetermines what is and is not “personal”,and what can and cannot be delegated.

If there is no special relationship then a dutycan be discharged by a competent contractorengaged in the non-negligent performanceof a task. If there is a special relationshipthen the duty cannot be discharged bygetting a contractor, however competent, to do it.

The basic question is whether a personal (a non-delegable) duty is imposed becauseof a certain relationship. Apart from the wellestablished relationships already mentioned,it is not easy to determine whether apersonal duty exists or not.

The legal principle is that:

“a special duty arises because the person onwhom it is imposed has undertaken the care,supervision or control of the person orproperty of another or is so placed in relationto that person or his property as to assume aparticular responsibility for his or its safety,in circumstances where the person affectedmight reasonably expect that due care will beexercised”

Duty of Care

18

A rented house had faulty wiring. Thelandlord engaged a qualified electricianto fix it. He did not do the job properlyand the tenants’ child suffered seriousbrain damage from electrocution. Wasthe landlord liable for the injury to thechild? Was there a non-delegable duty?

The difficulty of applying the legal prin-ciple to particular facts was illustrated bythe 1997 High Court decision inNorthern Sandblasting v Harris. In thecase two judges said a non-delegableduty applied and was breached. Two oth-ers said there was direct negligence.Three others found the landlord not to beliable for the injury.

Duty of Care

19

Department acts through employeesThe Department acts through its employees.When we speak of the Department’snegligence we are in fact speaking of thenegligence of an employee or an agency for whose actions the Department isresponsible.

In most cases it is the Department, theSecretary or the State that is sued. But whatif an employee is also named in the action?

What then is the situation of the individualemployee whose actions/inactions are saidto be negligent?

Vicarious liabilityAn employer is vicariously liable for itsemployees’ acts “in the course ofemployment”. Precisely where the limits of“the course of employment” lie is difficult to determine.

A CRU worker is driving a Departmentvehicle and runs over a child. Considerthe following three scenarios.

• It was customary for such employees todrive vehicles to transport clients.

•The employee was going home forlunch.

•The employee had given a hitch-hiker alift, in breach of clear policy, and notbeen concentrating.

Was there negligence and if so was theDepartment liable?

Generally speaking where an employee isnegligent “in the course of employment” theinterests of the employee and theDepartment will coincide and theDepartment will defend the action in termsof its vicarious liability. In such a case onewould not expect the employee to need tobe separately legally represented.

Where an employee is negligent but hasstepped outside of “the course ofemployment” the employee may bear soleresponsibility for the negligent action. Insuch a case, the employee would be welladvised to arrange separate legalrepresentation.

A child is removed from its naturalparents by the Department and placed infoster care. The natural parents areknown to be violent and unstable. Thenatural parents apply under FOI for thechild’s file. Documents are wronglyreleased which disclose the name andaddress of the foster parents. The naturalparents start harassing the foster parentscausing them to have to move house andcausing psychological harm.

Although the FOI officer was negligent,breaching the FOI restriction ondisclosure of personal information, theaction was still within “the course ofemployment”. It was the very thing theFOI officer was employed to do, an errorof judgment did not change that.

Liability of Department Staff

Duty of Care

20

In such a case as the one above while theDepartment is liable in negligence for theofficer’s actions, rather than the officerpersonally, the officer may be subject todiscipline proceedings on grounds ofincompetence.

Parties and WitnessesIn terms of the liability of Department staffit is important to understand the differencebetween a party to a claim of negligence and a witness. The parties are the personsmaking the claim (the plaintiff/applicant)and the person against whom the claim is made (the defendant/respondent). Awitness is incidental to the claim itself. A witness cannot be liable to pay damages if the claim is proved.

Where a claim is made against theDepartment, a staff member may berequired to give evidence. As the staffmember is generally not at risk in suchsituations, legal representation is notgenerally required. A witness is required togive evidence to the court or tribunal and, asa general rule, must answer questions andanswer truthfully. A lawyer for a witnesscannot interfere with this process unlessthere are grounds for objecting to answerson the ground of privilege, such as theprivilege against self-incrimination.

Duty of Care