What is Negligence?
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).
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. 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, namely 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 the customer to a reasonably foreseeable risk of injury that the centre could avoid by the exercise of reasonable care.
Breach of 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 person”. 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 allegedly 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. 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 things such 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 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 be held liable for those injuries.
Causation & Damage
Further, it must be shown that the injuries sustained were caused by the breach of duty. If the breach of duty has not resulted in your incident or injuries, you will not succeed with your claim. You must show that the breach of duty alleged has actually caused the accident and 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 injury tripping over a large pot plant in the food court, then the breach of duty in the shopping centre's failure to remedy the spillage 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, 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, including accepting claims for increased injuries caused by negligent medical treatment of injuries resulting from a negligent act, as long as the treatment does not amount to gross negligence. For example, if you slip and fall and break your leg, and due to negligent medical treatment you develop an infection requiring amputation of your leg, your claim against the shopping centre for the slip and fall injuries will extend to damage caused by 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 for example instead of repairing your broken leg under surgery, amputated it, then that is gross negligence on the part of the hospital and does not fall within your claim against the shopping centre 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
In summary, 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, loss and damage. 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 enacted 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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