What Is Negligence In Personal Injury Compensation Claims?
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).
What Is 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.
However 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.
A Duty Of Care Example
Another example is a customer in a Shopping Centre.
It's reasonable that a customer could suffer injury if exposed to hazards in the Shopping Centre.
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.
Breaching The Duty of Care
Secondly, there has to be an established 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.
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If you have been injured as a result of any vehicle such as car, bike 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.
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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.
How Does A Court View A Breach Of Duty?
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.
A slip and fall example, and how it shows liability
Lets use the Shopping Centre example again and this time their food court which regularly has spillages on the floor.
Thus the food court poses a risk of injury to customers of the Shopping Centre from slip and falls.
introducing measures to control the risk
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 inspect, clean and remove spillages promptly.
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 and 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.
A More Serious Example Of A Breach Of Duty
If due to the negligence of your employer, you have a crate fall on your head when opening a trailer door, then it is reasonably foreseeable that you might suffer an injury to your head.
It is also reasonably foreseeable that you might suffer a more serious injury such as a brain injury.
See a real life example like Mr Austin in the case of Austin v Parmalat (2013) QSC 227.
What happens if due to negligent treatment your Injury develops an infection or worse?
So if you slip and fall and break your leg, but due to negligent treatment you develop an infection requiring amputation of your leg, what do you do?
Well your claim for the slip and fall injuries will extend to the negligent treatment resulting in the loss of your leg.
What Is Gross Negligence?
So using our above exmaple, 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.
This 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
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.
Also that duty of care was breached by that party.
And finally 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.
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Remember, strict time limits apply to claims for most injury compensation in Queensland.