Throughout all of Queensland the same rules of accountability apply for acts and omissions that can cause loss or damage to others.
Unfortunately anyone is a potential victim of a negligent act and everyone is potentially liable for the consequences of what they do.
When is a ‘duty of care’ owed? What is the required ‘standard of care’? What constitutes ‘negligence’? What injuries or losses are “foreseeable”? What is needed to establish a connection between the negligence and their loss?
To answer concerns often confronted by victims, the experts at Carter Capner have produced the following guide.
What constitutes negligence in Queensland?
The foundation of the modern law of negligence comes from an episode that occurred in a café in Paisley, Scotland in 1928. As her waiter pouring ginger beer into her ‘ice cream floater’, the body of a decomposed snail emerged from the bottle. She became ill and persuaded a local solicitor to take and win, her injury compensation claim against the soft drink manufacturer.
In the leading judgement in the House of Lords, Lord Aitken – who had been born in Redcliffe – ruled that we all owe a duty to our “neighbour” to take reasonable care so as to not cause them harm. He defined “neighbour” as meaning someone who is so closely affected by our actions so as to warrant consideration as to whether and how to carry out a particular act.
The common law has developed the 1932 decision in Donahue v Stevenson but the principal endures.
In 2003 many Australian states saw fit – at the behest of insurance companies – to modify the common law. In Queensland this was accomplished by way of the Civil Liability Act (Qld).
The CLA codifies the requisite “standard of care”; grants immunity for some negligent behaviour; regulates contributory negligence in cases such as intoxication and greatly reduces the compensation payable to victims particularly for “pain and suffering” and “loss of amenities of life”.
There are 4 key` points that must be proven for a case to constitute negligence in Queensland. To successfully make a negligence claim, you must prove:
- You were owed a duty of care
- That the loss or injury sued for is “causally connected” to the wrongdoers breach of duty.
What is ‘duty of care’?
Duty of care is another way of expressing the “neighbour principle” articulated in the snail in the bottle case. The duty is simply to take reasonable care for others who you know or ought to know might be affected by your actions.
There are specific relationships already recognised by the courts where it is assumed a person owes another a duty of care. These include:
- A land occupant and their visitor
- A doctor and their patient
- A teacher and their student
- A manufacturer and their consumer
- A road user and fellow road users
- An employer and their employee
- A landlord and their tenant
- A holiday resort and its guests
- A cruise ship operator and its passengers
A duty of care only requires the taking of reasonable care.
“Standard of care” is the level at which the “reasonableness” bar should be set in the particular circumstances.
The level of the bar – or standard of care owed – is usually based on the relationship or proximity between the persons involved.
Professionals and anyone else who receives a fee-for-service, have a relatively high standard of care towards those to whom they are providing their service.
An emergency room doctor who turns away a patient with obvious signs of a pending cardiac arrest would be judged according to a very high standard of care.
A passer-by who ignores a person with the same symptoms sitting on a park bench would be held to have a far lower level of (or no) duty.
When is a ‘duty of care’ breached?
If a person’s acts or omissions fall below the standard of care expected of them, they are considered to have breached their duty of care. In Queensland, determining whether a breach of duty has occurred requires the consideration of the following steps:
- did the wrongdoer know of or ought he have known of the risk of harm?
- was the risk “not insignificant” (ie was there a fair chance that something bad could happen)?
- was it reasonable in the circumstances for the person to have taken steps to avoid the risk?
If the court answers all these questions “Yes”, the claimant has gotten to first base by and proved “negligence”.
But this alone does not add up to a successful claim. He or she still must show that the resulting damage was reasonably foreseeable and that it did in fact result from the act or omission complained of.
What does ‘reasonably foreseeable’ mean?
Do you think it is reasonably foreseeable that if a batsmen belts a cricket ball over the walls of a stadium like the Gabba that it might hit a passer-by on the head and cause injury?
That exact question was decided in respect of an English cricket ground in the 1960s. The court held that although it was foreseeable that such a massive hit might occur, the statistical probability of the ball striking someone so as to cause injury was so low, that an injury was not “reasonably foreseeable”.
A Brisbane homeowner whose gardener fell through a rusted drainage grate at the back corner of their property was held liable for his ultimate death from the injuries received because such outcome was ruled to have been foreseeable.
Queensland’s Civil Liability Act 2003 confirms the common law position that the losses that can be recovered for include:-
- Physical injury;
- Psychological harm including from that which results from physical injury;
- Damage to property;
- Unpaid personal care and household assistance;
- Pain and suffering
- Financial losses including future loss of earning capacity.
Note that the harm must occur to the person who was owed the duty. To take the Gabba stadium example once more, an injury from a power hit to a ticket holder inside the ground is foreseeable, even though one to a passer-by outside it is not.
Likewise a travel agent’s failure to advise customers of the need to obtain visas and immunisations makes him or her liable for them being refused entry to their destination country. But the agency is not liable to another member of the family who booked travel to the same destination direct with the airline.
Also, the harm inflicted must be as a direct result of the breach. In the case of the negligent travel agent, the agency would be responsible for the wasted air travel and airport transfers but not for any injury that one of the customers might receive in the airport terminal awaiting his or her forced return flight back to Queensland – because that further loss wouldn’t be considered a reasonably foreseeable consequence of their travel advice negligence.
Consider this further example arising in a workplace. If an employer doesn’t supply an employee with gloves to handle hot materials, the employer is liable for any third degree burns that might be suffered but not for the destruction of a staff member’s loss of a winning lottery ticket dropped onto the hot surface and erupting in flames. The loss of the lottery ticket would be considered to be so remote, that it was not reasonably foreseeable.
Example Case: Petrol Station
A member of staff at a petrol station is cleaning down a petrol spill with detergent and water. In doing so, they leave a large amount of the slippery detergent on the ground around the bowser, without a ‘caution’ sign, or any other indication the ground may be slippery. You arrive to fill up your car, and as you get out, you slip and fall. As a result of the fall, you break your arm.
Was there a duty of care owed?
Yes. As a visitor to their petrol station, they owe you a duty of care.
Did they breach their duty of care?
Yes. The risk that someone might not see the detergent and slip over is not insignificant. The harm that may have eventuated could definitely be serious. And, a reasonable person would have left warning that the ground was slippery, perhaps with a ‘wet floor’ sign, or another clear indication.
Were there reasonably foreseeable implications of that breach?
Yes. It’s quite likely that a person slipping over on a concrete surface might break their arm.
In this case, the petrol station has committed negligence and is liable for the resulting injury.
Who can make a claim for negligence in Queensland?
Anyone who thinks they may have been wronged can make a claim for negligence. If you’re unsure as to whether you have suffered injuries due to negligence, speak to the team at Carter Capner.
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