What Is A Breach Of Duty Of Care In A Personal Injury Claim?
The principles of the law of negligence
"Negligence" is a word used in personal injury claims to describe the wrongful act or omission of another party which results in some form of damage or injury to another.
The principles of the law of negligence have been developed over hundreds of years in Queensland through Courts of law. The main principles are:
1. There is a duty of care owed by the at-fault party to the injured party;
2. That duty of care has been breached by the actions of the at-fault party or their failure to act; and
3. The breach of duty of care by the at-fault party has resulted in the loss and damage claimed by the injured party.
The principles of Common Law negligence
In Queensland, the principles of Common Law negligence have been given statutory form by way of Chapter 2 of the Civil Liability Act 2003 which came into force as at 1 July 2003.
This legislation deals with what is to be taken into account when a Court is determining if there has been a "breach of duty of care", or negligence on the part of Defendant in a personal injury claim.
When a person sues for compensation for injury sustained in a motor vehicle accident, or from a slip/trip and fall in a public place like a shopping centre or a park, or on private property, or due to some other event caused by the negligent act or neglectful actions of another person in Queensland, then the provisions on what is a "breach of duty of care" as set out in Chapter 2 of the Civil Liability Act 2003 apply to that claim.
Those provisions are as follows:
Civil Liability Act 2003
Chapter 2: Breach of Duty of Care
Section 9 - General principles
(1) A person does not breach a duty to take precautions against a risk of harm unless
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
Section 10 - Other principles
In a proceeding relating to liability for breach of duty happening on or after 2 December 200
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.
Section 11 - General principles
(1) A decision that a breach of duty caused particular harm comprises the following elements—
(a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation);
(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).
(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.
(3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—
(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.
Section 12 - Onus of proof
In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
How does a Court apply this legislation?
The Courts apply these legislative provisions to the circumstances of a case before it by looking to the Common Law principles of negligence, and how the Courts have interpreted and applied the above legislation since it came into force in 2003.
The Civil Liability Act 2003 also contains defences that may be raised in response to a claim of breach of duty of care or negligence made in Queensland. These defences include the following:
(a) Obvious risk (Division 3 of Chapter 2 of the CLA)
If the accident is held by the Court to be the result of an obvious risk, then the claim will fail because the risk is so obvious that it no longer poses a risk ( e.g. a person tripping over a garden hose lying in full view on a lawn was considered an obvious risk in the case of Jaenke v Hinton (1995) QCA 484).
(b) Dangerous recreational activity (Division 4 of Chapter 2 of the CLA)
Where the injury has occurred in the course of participating in what the Court considers to be a "dangerous recreational activity", and the risk of injury that has resulted in the injury occurring is an inherent risk in such activity, again it is most likely the claim will fail.
For example, if you participate in an amusement park roller coaster ride, and you suffer an injury to your back due to twisting awkwardly whilst going through a loop-the-loop, a claim made for such injury is likely to fail. This is because the injury has arisen as a result of your participation in a dangerous recreational activity and it is an inherent risk in participating in that ride that you might be tossed about and suffer some form of strain or twisting injury.
However, if your injury was the result of a defect in the ride that caused you to be tossed about the carriage excessively during the ride causing your injury, then your injury is from the negligent act or omission of the ride operator in failing to identify and remedy the defect, and not from the inherent risk of injury involved in participating in such a ride, and you may succeed in a claim against the amusement park.
See the decision of Campbell v Hay (2014) 129 on our website. In that case, where a student pilot sustained injury in a plane crash, both the Court at first instance and the Court of Appeal held that learning to fly a small plane was a dangerous recreational activity, and the risk that an emergency landing may be required which may result in the pilot being unable to safely land the plane, was an inherent risk in such activity.
(c) Contributory negligence (Division 6 of Chapter 2 of the CLA)
The Court in some cases can find that the actions of the injured party have contributed in some way to the accident and their resultant injury occurring.
This usually results in a reduction in the damages awarded, but a Court can determine that the actions of the injured party were so wanting in due care for their own safety as to find that they contributed 100% to the accident occurring. The injured party's case will, in such case, fail.
(d) Criminal activities (Division 1 of Part 4 of the CLA)
Where the injured party suffers their injury whilst in the process of committing an offence at the time of the injury occurring, then the injured party's case will fail.
(e) Intoxication (Division 2 of Part 4 of the CLA)
The Act also applies mandatory reductions in damages in cases where the injured party's intoxication has contributed to the accident occurring, or they have relied on the care and skill of a person who was intoxicated.
Such cases can include where a passenger is injured in a car accident and the driver of the vehicle is intoxicated and was at fault for the accident occurring.
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