What does ‘Negligence’ mean in Personal Injury Law?

If you have suffered an injury in Queensland, you will likely have come across the term negligence.

But what does negligence mean, and how does it affect your right to claim compensation?

What is Negligence?

In personal injury law, negligence occurs when a person or organisation fails to take reasonable care, when they have a duty to do so, causing foreseeable harm to another person.

Under section 9 of the Civil Liability Act 2003 (Qld), a person is not negligent in failing to take precautions against a risk of harm unless:

• The risk was foreseeable
• The risk was not insignificant
• In the circumstances, a reasonable person in their position would have taken those precautions.

What is a Reasonable Person?

To determine what negligence looks like in practice, the Court will look at what a reasonable person might do in the situation. Some examples include:

• A reasonable driver – exercises care, attention and skill to avoid causing harm to other road uses.
•  A reasonable employer – takes active, practical steps to protect the health, safety and welfare of their workers.
•  A reasonable venue owner (or occupier) – takes active, practical steps to ensure their premises are safe for customers and staff.

Section 9(2) of the Civil Liability Act 2003 (Qld) will consider the following factors when deciding if a reasonable person would have taken precautions:

1. Probability: How likely was it that harm would occur if precautions were not taken?
2. Seriousness: How severe was the potential injury?
3. Burden: How difficult, expensive, or inconvenient was it to take precautions?
4. Social Utility: Did the activity have an important benefit to the community?

What else do I need to prove to succeed with a common law claim?

While negligence is the core foundation of a common law claim, the injured person must prove four distinct legal elements in order to win the case.

To be successful, you must prove the following: -

1. Duty of Care – the person or entity at fault had a legal obligation to ensure your safety for example an employer to their workers or a driver to other motorists.
2. Breach of Duty – the responsible party failed to meet the standard of care. They did something a reasonable person would not do, or they failed to do something a reasonable person would do.
3. Causation – the negligent act or omission directly caused your injury. Your injury would not have happened if they had not breached their duty.

1. Damage / Loss – you suffered actual harm or loss. This allows you to claim compensation for financial loss, medical care and pain and suffering.

What If I Was Partly Responsible?

In some cases, an injured person may have contributed to the accident and their injury. This does not automatically prevent you from pursuing a claim for compensation.

Instead, the compensation may be adjusted to reflect the injured person’s share of responsibility. This is known as contributory negligence.

Should I Speak to a Lawyer if I have been injured or hurt because of someone's Negligence?

Determining whether negligence occurred is not always straightforward. What may seem like an unavoidable accident could actually involve a failure to follow proper safety procedures ie. Negligence.

An experienced personal injury lawyer can investigate the circumstances of your injury, explain your legal options, and advise whether a common law claim may be available.