Common Law Duty Of Care Help! Sheet

Common Law Duty Of Care Help! Sheet

In either case, the Management Committee members remain ultimately responsible for ensuring that others do not suffer damage or loss through the organisation’s activities. As the employer, they are responsible for the actions of their staff or volunteers, even where the individual concerned failed to follow established rules or procedures. They may become personally liable for debts or claims which result from actions or inactions (see section on accountability and legal liability for more information).

Where does a duty of care exist?

A duty of care exists where:

a) there is a relationship between two parties, particularly where this is a relationship of trust (e.g. between service provider and service user, counsellor and client, patient and carer, employer and employee); and

b) the consequences of the actions could reasonably have been foreseen.

For example,

An organisation is set up to provide advice or counseling to the general public. It is anticipated that service users may rely on such advice. Therefore, it would be reasonable for the Management Committee to ensure that those employees and volunteers giving advice were qualified to do so and that the advice being issued, was accurate and timely.

In such circumstances it would also be reasonable to assume that the Management Committee have a duty of care to those in receipt of such advice.

How can we ensure that we don’t breach our duty of care?

Breach of duty of care is concerned with the standard of care that ought to have been applied in the situation. Therefore, if the conduct of the individual or organisation fell below the standard that a reasonable person would have expected, they will have been negligent in their duty.

The Management Committee has therefore a responsibility to ensure that the organisation’s activities meet with expected standards of good practice. Where an organisation has acted in accordance with generally accepted practice, as it occurs within the same or a similar field of work, it is likely that they will have acted reasonably, unless particular additional risks existed.

For example,

An organisation that works with children or young people can be reasonably expected to have in place policies and procedures to provide protections, restricting who works alongside these children, ensuring staff and volunteers have relevant training in their policies and ensuring that there are appropriate restrictions on activities.

In order to avoid breaching your duty of care, you need to be aware of where you have a duty of care and where there is a risk that you may cause damage or loss to other individuals or parties. As a Management Committee, you should ensure that a thorough risk management strategy exists for the organisation – one which is regularly reviewed and updated to ensure that the necessary actions are taken to reduce the likelihood or impact of risks faced. (Click here for more guidance on how to manage risks within your organisation).

Duty of care towards the organisation

Management Committee members must also be aware of the duty of care that they collectively and individually take on in relation to the organisation and care of its assets and reputation. This means that they must be aware of their responsibilities to the organisation as management committee members and ensure that they are effective ‘guardians’ of the organisation and its assets. Management Committee members must act in the organisation’s interests, not in their own personal interest, and not in the interests of another organisation.

By ensuring that they act reasonably and diligently in carrying out their duties, Management Committee members will also limit their personal liability for any loss or damage caused through breach of duty of care.

More on liability

More on limiting liability