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Legal concepts — duty of care
Duty of care is the legal obligation a professional owes to their client to act with reasonable skill, care, and diligence. It arises when a professional takes on a client’s matter and that client reasonably relies on their expertise. If a professional breaches that duty and causes you measurable loss, the law may entitle you to compensation.
If you’re here, something has probably gone wrong in a professional relationship. A lawyer, doctor, financial adviser, or another expert was supposed to help — and instead, you’ve been left worse off. Understanding whether a duty of care existed is the first step toward knowing whether you have a claim.
Duty of care is almost always the easiest element to establish in a professional relationship. The harder questions are usually what happened after it was breached — and what it cost you.
THE LEGAL FOUNDATION
Duty of care has its roots in a 1932 House of Lords decision — Donoghue v Stevenson [1932] AC 562 — where the court established the “neighbour principle”: you owe a duty of care to those who could be foreseeably harmed by your actions. Australian courts adopted and built on this principle, and it has been central to negligence law ever since.
The test has two parts: first, whether harm to the person was reasonably foreseeable; and second, whether it is fair, just, and reasonable in the circumstances to impose a duty. In a professional relationship — where a qualified expert takes on your matter and you rely on their skill — both parts are almost always satisfied.
Modern Australian states and territories have codified the reasonable foreseeability test through Civil Liability Acts — including section 5B of the Civil Liability Act 2002 (NSW), section 9 of the Civil Liability Act 2003 (QLD), section 48 of the Wrongs Act 1958 (VIC), and section 5B of the Civil Liability Act 2002 (WA). These statutes modified but did not replace the common law framework.
There is also a meaningful distinction between a general duty owed to the public — the kind a driver owes to other road users — and the specific, heightened duty a professional owes to the individual client who has engaged and relied on them. The professional duty is the one that matters for negligence claims.
WHEN IT APPLIES TO YOU
In a professional engagement, duty of care is rarely in dispute. The moment someone holds themselves out as a qualified expert and you engage them — and reasonably rely on their advice or services — the law recognises that a duty exists. It arises from the relationship itself, not from a written contract.
Here is how that duty operates across the professions most frequently involved in negligence claims:
A solicitor owes their client a duty to act competently, honestly, and in the client's best interests. That duty covers the accuracy of their advice, meeting filing deadlines, and avoiding conflicts of interest. Miss a critical limitation period and lose the client's case — that's a breach with real consequences.
Medical professionals owe a duty to diagnose, treat, and advise patients with reasonable care and skill. That includes a duty to refer when necessary and to disclose material risks. A missed diagnosis that allows a condition to progress unchecked is a textbook example of a duty breached. Regulated by AHPRA.
Financial advisers must provide advice that is appropriate to the client's circumstances, risk tolerance, and financial goals. That obligation is reinforced by the Corporations Act 2001 (Cth) and ASIC's regulatory framework. Recommending high-risk products to a retiree with conservative goals is not just bad advice — it may be a breach.
Accountants owe a duty to prepare accurate financial statements, provide competent tax advice, and flag issues that a reasonable practitioner would identify. An error that triggers an ATO audit, a penalty, or a missed deduction claim can form the basis of a professional negligence claim.
Engineers must apply professional standards in design, inspection, and certification. A structural defect caused by a flawed design, or a property valuation that overstated value and led to a financial loss, can both give rise to a duty of care claim. The loss needs to be real and traceable to the professional's failure.
A real estate agent owes a duty to disclose material information, act honestly, and represent the client's interests — whether acting for a vendor or a buyer. Failing to disclose a known defect, or misrepresenting a property's value or condition, can give rise to a claim.
THE LEGAL TEST
Australian courts apply a two-stage test drawn from the High Court’s reasoning in Sutherland Shire Council v Heyman (1985) 157 CLR 424. First: was it reasonably foreseeable that the defendant’s conduct could harm the plaintiff? Second: is it fair, just, and reasonable to impose a legal duty — having regard to the proximity of the relationship and broader policy considerations?
Two additional concepts matter in professional relationships. The first is assumption of responsibility — when a professional takes on a client’s matter, they voluntarily assume a duty to exercise proper care. They cannot later argue they did not owe one. The second is reasonable reliance — the client must have relied on the professional’s skill or advice, and that reliance must have been reasonable in the circumstances.
In practice, courts rarely spend much time on duty of care in professional negligence matters. It is almost always found to exist once an engagement is established. The real battleground in most claims is breach — whether the professional fell below the required standard — and causation — whether that failure actually caused the loss claimed.
BUILDING YOUR CLAIM
Duty of care is the first of four elements that must be established for a successful professional negligence claim. Establishing it is necessary — but not sufficient on its own.
All four must be present. If any one element fails — most commonly causation or quantifiable loss — the claim will not succeed even if the professional’s conduct was genuinely poor. That is why understanding each element matters before you proceed.
For a deeper look at the connected concepts, see our pages on breach of duty, causation in professional negligence, and standard of care.
THE CASE THAT SHAPED THE LAW
The case that gave us duty of care in its modern form. A woman fell ill after consuming a ginger beer containing a decomposed snail — and the House of Lords held that the manufacturer owed her a duty of care, despite no contract between them. Lord Atkin’s “neighbour principle” — that you must take reasonable care to avoid acts or omissions that you could reasonably foresee would injure your neighbour — remains the conceptual foundation of negligence law in Australia today.
The High Court of Australia’s pivotal contribution to the test for duty of care. The Heymans purchased a property the council had inspected and passed — only to discover serious structural defects. The court refined the Australian approach to duty of care, establishing the proximity and reasonable foreseeability framework that remains the operative test. Justice Deane’s reasoning on proximity has been cited in professional negligence cases ever since.
The High Court’s leading authority on pure economic loss — where the only damage is financial rather than physical. Apand supplied diseased seed potatoes, causing quarantine restrictions that devastated the Perres’ export business. The court confirmed that duty of care can extend to financial loss where proximity and reasonable foreseeability are established. This principle is directly relevant to claims against financial advisers, accountants, and solicitors — where the harm is almost always economic. See our full case note: Perre v Apand explained.
Professional negligence claims in Australia must generally be commenced within three years of the date you became aware — or should reasonably have become aware — of the negligent conduct. This period varies by state: three years in NSW, QLD, SA, ACT, and NT; up to six years for general claims in VIC, WA, and TAS.
Missing the deadline can permanently extinguish your right to claim — regardless of how strong the case would have been. If you are unsure whether your limitation period is still open, contact our team for a free assessment as soon as possible.
A free case evaluation with Fair Go Australia costs you nothing and commits you to nothing. You tell us what happened. We give you an honest assessment of where you stand — including whether duty of care is likely to be established, and whether your claim is worth pursuing.
We respond to all enquiries within 1 business day.
Common questions
In almost every formal professional engagement, yes. Once a qualified professional takes on your matter and you reasonably rely on their expertise, a duty of care is recognised by law. The rare exceptions — informal advice, gratuitous services, casual conversations — seldom arise in genuine professional relationships where a fee is charged and a matter is formally managed.
Yes. Duty of care is a common law concept that exists independently of any contract. What matters is whether a professional assumed responsibility for your matter and whether you reasonably relied on them. Many successful negligence claims involve professionals who never provided a written retainer or formal engagement letter.
They are related but distinct concepts. Duty of care asks whether a legal obligation existed — was the professional required to look after your interests? Standard of care asks what level of skill and diligence was required in doing so. Both must be established in a negligence claim. A professional may have clearly owed you a duty, but the question of whether their conduct fell below the required standard is assessed separately.
Sometimes. Where a professional’s negligent conduct foreseeably causes financial loss to someone beyond their direct client — and proximity can be established — a duty of care may still exist. The High Court confirmed this in Perre v Apand (1999) 198 CLR 180, which remains the leading authority on duty of care and pure economic loss in Australia. These cases are more complex, but they are not without precedent.
Almost certainly not. Duty of care in professional relationships does not depend on a written contract. If you engaged a professional, paid for their services, and reasonably relied on their expertise, the law is likely to recognise that a duty existed regardless of what was or was not signed. A professional telling you otherwise is not legal advice you should accept without a second opinion.
Our goal is to help people in the best way possible. this is a basic principle in every case and cause for success. contact us today for a free consultation.
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