When I was asked to speak on the ‘duty of care’ owed by the museum employees to collection material I asked, ‘Why?’ The answer was interesting: ‘Often I think that the concept of ‘duty of care’ is just used as a nice reason for refusing a loan request. What does is it really mean and what are its implications for us.’
Certainly the phrase ‘duty of care’ is one of the most important phrases in civil law. It is the foundation stone of the law of negligence. In brief: We all have a duty of care to take reasonable care not to cause foreseeable harm.[1]
There are literally thousands of reported cases on the subject of ‘duty of care’ and each jurisdiction has statutes that seek to clarify or articulate the nature and extent of that duty. Because I have 20 minutes, I’ve decided to do something risky. What I want to do is to take the authorities and try and articulate for you, some approaches that may help you make decisions so that you are more likely to fulfil your duty of care. Cases are always retrospective affairs: they examine behaviour that has already taken place. What I want to do is turn it around and give you some principles for determining ‘present’ decisions and future conduct.
If you are concerned about the course of action you are taking, I suggest that you ask the following questions that underlie the area of ‘duty of care’ and professional negligence:
- Is harm foreseeable?
- Is the risk ‘not insignificant’; and
- Who may suffer harm?
- In the circumstances, would a reasonable person in your position take the precautions you are taking, or would they take other precautions?
(i) Is harm foreseeable?
Simply this means, is there a risk of harm that you know of or ought to know of?
What is the potential of your action (or failure to act) to cause harm
It isn’t necessary that you should have foreseen the precise harm or how it occurred. It is sufficient that the risk is one of a class of risk that, in a general way, you should have foreseen.
So for example, assume that you are an experienced Registrar. Certain loan material is to be returned to its owner. You determine that, in the absence of any contractual term to the contrary, it can be sent by ordinary post. You do. It is lost. Was the loss of the object foreseeable? Yes. We know, or should know, that things sometimes go missing or get damaged in the post.
(ii) Is the risk significant?
Not all risk of harm is worth protecting against. There are some risks of harm that a person may consider but then reasonably dismiss.[2]
So the question comes to this: Is the foreseeable type of harm such, that a reasonable person would have taken precautions?
We can answer this by answering four questions:
- If care is not taken, what is the probability that harm will occur?
- If it does occur, what is the likely seriousness of the harm?
- What is the burden of taking precautions to avoid the risk of harm?
- Does the activity that creates the risk of harm, have a particular public benefit or social utility?
(iii) Who may suffer harm?
The duty of care is something that we owe to others. The difficulty has always been to determine the breadth of that duty. Which others? In his famous judgement in Donoghue v Stevenson[3], Lord Aitken answered it by adapting the Christian edict ‘Love thy neighbour’ saying that we owed a legal duty of care to our neighbour and then, (in a classic example of asking a question to which you know the answer), he wrote:
Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.
And for the next three quarters of a century, this formulation was the basis of thousands of legal cases in which the plaintiff argued that it would have been reasonable for the defendant to have had the plaintiff in mind, while the defendants argued that their relationship to the plaintiff was too remote as to give rise to a duty of care.
So, to whom do we owe a duty of care? The many decided cases on this subject, if providing no simple ready-made solution to the question whether or not a duty of care exists, do indicate certain requirements to be satisfied before a duty is found.[4]
For a duty of care to be owed, the harm to the victim must be reasonably foreseeable.[5] (But just because the harm was reasonably foreseeable does not mean that a duty of care is owed. It is a necessary condition but is not, of itself, sufficient to establish the existence of a duty).[6]
The second requirement is proximity, which means not simple physical proximity. It extends to those who you should have known would be affected.[7]
The third requirement is that imposition of the duty would be just and reasonable.[8]
(iv) In the circumstances, would a reasonable person in your position take the precautions you are taking, or would they take other precautions?
If you hold yourself out as possessing a particular skill, the standard care that you must apply is that which can reasonably be expected of a person possessing that skill. If you are a Registrar, you are judged by the level of professionalism expected by and of your peers. What would a competent Registrar do in this circumstance?
It is important to note that the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done. You can still fulfill your duty of care by making a reasonable, thoughtful and competent decision notwithstanding that another person, on the same facts, might have chosen a different course of action.
Moreover, you can only determine your course of actions on the basis of the relevant circumstances as you then knew them. Just because other facts came to light later, is irrelevant. Of course, if someone with your level of purported skill would have said, ‘I don’t have enough facts on which to make a good decision’, then part of your duty of care is to satisfy yourself of the facts or take appropriate precautions to compensate for the lack of information.
This last point is one of which all Registrars must be wary, for often it is easier to impose onerous but unnecessary conditions merely because to do so is easier than finding out more details and thus articulating more appropriate or practicable terms or precautions.
Can the improvement of our risk minimisation procedures amount to an admission of liability as to previous incidents?
All collection managers have been in situations in which objects have been lost or damaged. You try and learn from disasters and improve your systems so that they are less likely to happen in the future. The general approach of the cases and the statutes is to say that ‘the subsequent taking of action that would have avoided a risk of harm (had the action been taken earlier) does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk. In other words it is in the public interest that we do learn from our mistakes and that the desire to improve the care we give should not be held against us.
Conclusion
If in doubt as to a course of action, the cases and statutes indicate that the following list of questions should be in your mind:
- Is harm foreseeable?
- Is the risk ‘significant’; and
- Who may suffer harm?
- In the circumstances, would a reasonable person in your position take the precautions you are taking, or would they take other precautions?
- If you don’t take care, what is the probability that harm will occur?
- If harm were to occur, what would be its likely seriousness?
- What is the burden of taking precautions to avoid the risk of harm?
- Does the activity that creates the risk of harm, have a particular public benefit or social utility?
In the snug world of museums and galleries these matters are rarely litigated. Apologies are made; money may pass hands; but rarely does damage to exhibition or loan material result in litigation. But this should not give you succour. The toughest judge of whether you have breached a duty of care will be the media, your donors, your sponsors and your lenders.
By Shane Simpson, Special Counsel for Simpsons Solicitors
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Endnotes
[1] I am conscious that New Zealand abolished the concept of negligence in personal injury actions 36 years ago, replacing it with a no-fault scheme. The principles remain for damage to property.
[2] In Barclay Oysters, Justice McHugh stated: ‘If the (defendant) should have foreseen the class of risk, a further question arises as to whether the risk could be reasonably disregarded. Reasonable foreseeability involves more than a question of fact. It involves a value judgment. Would a reasonable person in the position of the defendant not only have foreseen that his or her conduct – including omissions – gave rise to risk of injury, but regarded it sufficiently serious to consider what steps should be taken to avoid or reduce it?’: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540; 194 ALR 337; 77 ALJR 183. a
[3] [1932] AC 562
[4] In Caparo Industries v Dickman [1990] 2 AC 605 the House of Lords approved the ‘three stage’ test formulated by Bingham LJ in his judgment at the Court of Appeal. Lord Justice Bingham looked at the many conflicting cases and concluded that it was not possible ‘… to find a single proposition encapsulating a comprehensive rule to determine when persons are brought into a relationship which creates a duty of care…’
[5] Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175, 192A.
[6] Hill v Chief Constable of West Yorkshire [1989] AC 53, 60B
[7] Donoghue v Stevenson [1932] AC 562, 581, per Lord Atkin.
[8] Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210, 241; Weintraub CJ in Goldberg v Housing Authority of the City of Newark (1962) 186 A. 2d 291, 293.