THE MOST COMMON tort law action in the human services has been negligence. Negligence involves unintentional but blameworthy wrongs done to others, for which the wrongdoer can be held responsible in law. At the core of negligence is a failure to meet the standards of the time.

For a negligence action to succeed, three critical elements must be established by the plaintiff and for each element much will hang on the nature of the relationship between the plaintiff and the alleged wrongdoer. The elements are:

• the plaintiff was owed a duty of care by the alleged wrongdoer

• the wrongdoer breached the duty of care

• the breach caused the reasonably foreseeable harm to the plaintiff.

This chapter considers these three elements of negligence in relation to child protection, stolen generations, correctional and immigration detention cases.

DUTY OF CARE

The phrase ‘duty of care’ is in the title of this book due to widespread use in the human services. However, as argued elsewhere (Kennedy and Richards 2007), the meaning of duty of care in the human services is inchoate and probably bears little resemblance to the very particular way in which it is used in the law. Duty of care in law concerns the relationships between parties and is a question of law at any one time – it is not a question of fact, of the views of the parties involved, or of morality or ethics.