Unintentional Tort in Australia: 2026 Guide to Liability & Protection

An unintentional tort occurs when someone’s careless action or failure to act causes harm to another person, their property, or their finances—even if there was no intent to cause damage. Unlike criminal acts or deliberate wrongdoing, unintentional torts usually result from a moment’s inattention, a lack of reasonable care, or not meeting a duty of care owed to others.

Common Examples of Unintentional Torts

• Negligence: The most common type, such as failing to fix a broken footpath that leads to injury.
• Car accidents: Where a driver’s lack of attention causes harm to others.
• Slips and falls: For example, a customer slipping on a wet floor in a shop.
• Professional errors: Mistakes made by accountants, advisors, or other professionals that result in financial loss for clients.

To establish liability for an unintentional tort, it generally must be shown that:

1. A duty of care existed between the parties.
2. That duty was breached.
3. The breach caused harm or loss.

With more Australians working from home, running side businesses, and engaging in digital transactions, the scope of what counts as a 'duty of care' continues to evolve.

Recent changes in Australian law and shifts in how people live and work have made unintentional torts more relevant than ever:

• Remote and Hybrid Work: As more people work from home or in flexible arrangements, both employers and employees face new risks—such as home office safety and data security.
• Changing Consumer Expectations: Updates to consumer protection laws have made it easier for people to seek compensation for harm caused by negligence, especially in service delivery and digital transactions.
• Insurance Trends: Insurers are adjusting their products to cover new types of risks, including those faced by gig workers, remote businesses, and home-based enterprises.

Even minor incidents—like a delivery driver involved in a collision or a café owner whose customer slips on a wet floor—can lead to significant financial consequences, regardless of intent.

What Is Duty of Care?

Duty of care is a legal obligation to take reasonable steps to avoid causing harm to others. The standard of care required depends on the relationship between the parties and the circumstances. For example:

• Employers must provide a safe working environment, including for remote workers.
• Business owners must keep their premises safe for customers and visitors.
• Professionals must deliver services with reasonable skill and care.

How Is Negligence Determined?

Negligence is established if a person or business fails to meet their duty of care and someone suffers harm as a result. Courts will consider what a reasonable person would have done in the same situation. Evidence such as maintenance records, safety checks, and communication logs can be important in defending against a claim.

Whether you’re a homeowner, a sole trader, or an employee, there are clear actions you can take to help protect yourself from unintentional tort claims:

1. Review Your Insurance

• Public liability insurance can help cover legal costs and compensation if someone is injured or their property is damaged due to your activities.
• Professional indemnity insurance is important for those providing advice or professional services.
• Home and contents insurance may offer some protection if an incident occurs at your property. For more information, see home and contents insurance.

Many insurers now offer policies tailored for remote workers and home-based businesses. Check your coverage and consider whether you need to update your policy to reflect any changes in your work or living arrangements.

2. Keep Good Records

Document safety checks, maintenance, and communications with clients or employees. Good records can demonstrate that you took reasonable steps to prevent harm, which may help defend against a negligence claim.

3. Stay Informed About Legal Changes

Laws around negligence and liability can change. For example, recent reforms in some states have clarified what counts as a ‘serious injury’ and adjusted thresholds for compensation. Being aware of these changes can help you understand your obligations and rights.

4. Promote Safety and Awareness

• For businesses: Regularly train staff, maintain safe premises, and use clear signage to warn of hazards.
• For individuals: Keep your property in good repair and follow safety guidelines, especially if you have visitors or operate a business from home.

In the Workplace

Employers are responsible for providing a safe environment, even for employees working remotely. This can include offering guidance on setting up a safe home office and conducting risk assessments. If an employee is injured while working from home and the employer has not provided adequate support or information, liability may arise.

For Businesses

Businesses must ensure their premises are safe and that their products and services do not cause harm. This responsibility extends to digital transactions and online services, especially as more business is conducted remotely.

For Homeowners

Homeowners have a duty to keep their property reasonably safe for visitors. This includes repairing hazards like broken steps or slippery surfaces. If someone is injured due to a hazard that could have been fixed, the homeowner may be liable.

Insurance is often the first line of defence against the financial impact of an unintentional tort claim. The right policy can help cover legal costs, compensation, and other expenses arising from a claim.

Types of Insurance to Consider

• Public Liability Insurance: For businesses and individuals who interact with the public.
• Professional Indemnity Insurance: For those providing professional advice or services.
• Home and Contents Insurance: For property owners and renters. See home and contents insurance for more details.

Tailoring Insurance for Remote Work

With more Australians working from home, insurers are offering policies that combine elements of public liability and professional indemnity insurance. These can be particularly useful for freelancers, consultants, and small business owners operating from home.

Legal reforms can affect how negligence claims are assessed and compensated. Recent changes in some states have clarified definitions and thresholds for compensation, aiming to make the process fairer and more efficient. Staying informed about these changes can help you better understand your risks and responsibilities.

Unintentional torts remain a real risk in Australia, especially as work patterns and consumer expectations continue to change. By understanding your obligations, maintaining good safety practices, and ensuring you have appropriate insurance, you can reduce your exposure to costly legal claims and protect your financial future.

What is an unintentional tort?

An unintentional tort is a legal term for harm caused by someone's carelessness or failure to take reasonable care, rather than deliberate actions.

How can I protect myself from negligence claims?

Maintain safe premises, keep good records, stay informed about legal changes, and ensure you have suitable insurance coverage for your situation.

Does home and contents insurance cover negligence claims?

Some home and contents insurance policies may provide cover if someone is injured on your property, but coverage varies. Review your policy or speak with your insurer for details.

Are remote workers covered by standard workplace insurance?

Not always. Employers and employees should check their insurance arrangements and consider additional coverage if working from home or running a business from home.