1.3.4.20 Duty of Care when giving Advice or Information

Giving advice or information

Duty of care with regard to advice involves the performance of duties to a reasonable standard of care. 'Reasonable' generally means a standard of care expected of a reasonably prudent public servant administering welfare legislation consistent with sound administrative practices.

Explanation: See Shaddock v Parramatta City Council.

Advice can be given either orally or in writing. The consequences of incorrect advice are the same whether the advice is given orally or in writing, so the same degree of care MUST be taken. Care MUST be taken to ensure that oral advice is expressed clearly enough for the person to understand, taking into account any obvious educational and language barriers.

Advice or action outside Department's area of expertise

Departmental officers are often asked to provide information about other government departments or agencies.

Example: Information may be about taxation or concession matters.

It is important to make the customer aware that the inquiry is outside the expertise of this Department and that although the Department will offer whatever assistance is possible, the customer should make inquiries with the appropriate department or agency to obtain authoritative advice or action.

Example: Assistance offered by the department may include brochures or a social worker referral.

Negligent advice

The question of whether negligence occurred depends on the particular facts of each case. Duty of care is not breached simply because advice is wrong. The duty is only to exercise reasonable care when giving advice. As a rule carelessness WILL constitute a breach of duty of care.

Example: There is no negligence if a staff member accepts a NSA claim from a customer who is single with a child. There is no legal obligation to advise that PP may be a better entitlement unless the person queries their correct entitlement. There is no carelessness if a person presents a claim form and it is correctly processed.

Examples: The following claims may be successful under Regulation 9 of the FMAA on the basis of negligent advice:

• Due to a procedural breakdown, a customer who is about to lose entitlement to PP is not advised of the time limits regarding transfer to NSA until after the period has expired. This is a late advice.
• A student is advised not to claim benefit until they serve a 13-week waiting period. This is incorrect advice.
• An officer relies on incorrect instructions issued by the Department and, as a result, provides incorrect advice.

A person will usually NOT be able to establish that they have suffered economic loss because of negligent advice if the person has acted on general inquiries made.

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Last reviewed: 27 January 1999