The Personal Injury Lawyers
QUEENSLAND'S PERSONAL INJURY COMPENSATION EXPERTS. SINCE 1983.
shards-minimal-good-for-heavy-text.jpg

FAQ's: When is a person considered "negligent" and therefore liable to pay compensation or damages?

F.A.Q's Answered.

< BACK TO FAQ'S

When is a person considered "negligent" and therefore liable to pay compensation or damages?

The law of negligence has existed in Queensland for hundreds of years and has developed and evolved over this time through the decisions of Judges in Courts of law. When a Court looks at whether you have a claim for damages or compensation for injury caused by the negligence of another party, what it considers is whether that party by its actions, or its failure to take action, exposed you to a risk of sustaining injury, which could have been avoided by the exercise of reasonable care. The risk of injury must be reasonably foreseeable, meaning, it cannot be far fetched or fanciful (for example, the risk is so unlikely to occur that it is negligible, or it is so obvious a risk that it no longer becomes a hazard).

A Duty of Care

Firstly, to succeed in proving negligence, you must show that you were a person to whom was owed a duty of care by the party you allege is at fault. This means you must establish that you were a person who might reasonably be exposed to the risk or hazard. For example, it is reasonably foreseeable that other drivers on the road and pedestrians may be exposed to a negligent driver, but it has also been found by a Court that a person who comes to the aid of a person injured in a motor vehicle accident may also be exposed to danger in doing so - danger caused by the accident resulting from the negligent driver. Another example is a customer in a Shopping Centre – it is reasonably foreseeable that a customer will suffer injury if exposed to hazards in the Shopping Centre, and therefore the customer is owed a duty of care by the Shopping Centre not to expose them to a reasonably foreseeable risk of injury that the Centre could avoid by the exercise of reasonable care.

Breach of that Duty of Care

Secondly, there has to be established a breach of that duty of care. The test that is applied here is that of the “reasonable man test”. What this means is, a Court will consider what steps a reasonable person would have taken in the circumstances. Would a reasonable person have identified the risk posed ? Were there reasonable steps that could have been taken to remove the hazard or to minimize it as much as possible, which a reasonable person in the circumstances would have taken? If the answer to these questions is “yes”, then you have a claim in negligence for the injury, and any resultant loss and damage sustained.

However, when determining whether a person has taken "reasonable care" to avoid the hazard, the Court will look at whether the action or steps alleged should have been taken, were too onerous to expect of the person at fault. When considering this, the Court will look at whether the alleged steps could be given practical effect in the circumstances, or whether they would result in too high an expense to make them a viable option. The Court will also look at the risk itself and whether it is sufficient to warrant the extent of care alleged should have been taken and in determining this, a Court will look at the likelihood of the risk occurring and the seriousness of the injury that could result from the risk.

For example, a Shopping Centre has a food court. The food court regularly has spillages on the floor of the food court which poses a risk of injury to customers of the Shopping Centre from slip and falls. The Shopping Centre, if acting reasonably should identify this risk, and take steps to introduce measures to control the risk, including such things as non-slip floor surfacing, a system to provide timely warnings of spillages, and a cleaner or cleaners present in the food court to undertake inspection and cleaning of the food court area to remove spillages in a timely manner. If the Shopping Centre fails to do this, and a customer slips and falls on a spillage in the food court injuring themselves, then it is more than likely that the Shopping Centre will hold liability for those injuries.

Causation & Damage

Further, it must be shown that the injuries sustained were caused by the breach of duty. That is, if the breach of duty you point to has not resulted in your incident of injury to occur, then you will not succeed on your claim. You must show that the breach of duty alleged has actually caused the accident and your resultant injuries for which you are claiming. For example, if the Shopping Centre fails to keep the food court floor clean from spillages, but you suffer your injury tripping over a large pot plant in the food court, then the breach of duty in the Centre's failure to remedy the spillages on the food court floor has nothing to do with your accident occurring.

However, if because of the spillage on the floor of the food court you slip and fall into the nearby pot plant, tumbling over it, then your resultant injuries were caused by the breach of duty of the Shopping Centre failing to tend to the spillages on the floor of the food court, and the Shopping Centre is likely to be found liable to compensate you for your injuries.Also, the injury sustained by the negligence must be reasonably foreseeable and not too remote. For example, if, due to the negligence of your employer, you have a crate fall on your head when opening a trailer door, like Mr Austin in the case of Austin v Parmalat (2013) QSC 227, then it is reasonably foreseeable that you might suffer an injury to your head, but it is also reasonably foreseeable that you might suffer a more serious injury such as a brain injury.

Courts have been quite wide in their determinations on this issue however, including claims for increased injuries caused by negligent medical treatment of injuries resulting from a negligent act, as long as it does not amount to gross negligence. So if your slip and fall and break your leg, but due to negligent treatment you develop an infection requiring amputation of your leg, your claim for the slip and fall injuries will extend to the negligent treatment resulting in the loss of your leg. However, if the loss of your leg was due to the gross negligence of the hospital who instead of repairing your broken leg under surgery, amputated it – then that is gross negligence and does not fall within your claim for your slip and fall injuries. This would be a claim for gross negligence against the hospital and /or treating surgeon.

What you need to prove and the onus of proof

Therefore, to be successful in a claim for compensation or damages for injuries sustained because of the negligence of another party, you need to show you were owed a duty of care by that party, that duty of care was breached by that party, and that breach caused your injuries and the loss and damage suffered by you because of same. The onus of proof required in establishing a claim for negligence, is “on the balance of probabilities”. That is, the facts needed to prove your case, must be proved to be more likely to exist than not.

The Civil Liability Act 2003 (“CLA”)

In 2003, the CLA was brought into being to govern personal injury claims in Queensland. The principles of negligence as set out above, as they apply to personal injury claims in Queensland, were reduced to statute and included in Chapter 2 Part 1 of the CLA.  To read these provisions go to the following link on our website: CLA Breach of Duty.

Chat with a Lawyer today as strict time limits apply

Questions? Please contact us, The Personal Injury Lawyers to find out what your rights and entitlements are. You can always chat live or email us and we'll contact you. Remember, strict time limits apply to claims for most injury compensation in Queensland.


Get our accredited Lawyers to assess your claim for free. Get in touch today

If you have been injured as a result of any vehicle such as carbike or boat accident, or whilst at work, on holiday, or in many other situations you believe was caused by someone else's wrongful act or negligence, you may be entitled to compensation. Even if you think your actions may have contributed to your injury, you may still have a claim well-worth pursuing. Chat, call, email, or let us assess your claim, just press the button below. There is no cost, and no obligation.


USEFUL LINKS