Negligence Claims QLD | Suing for Negligence
To succeed in a negligence claim in Queensland, you must prove that the defendant owed a “duty of care”. This means that the person at fault had a legal obligation to take reasonable steps to avoid causing harm to you and others. Courts assess duty of care by reviewing the relationship between the parties, and deciding whether it is “reasonable” to expect such care. For example, there is a duty of care in the relationship between a doctor and a patient or a property owner and a visitor.
In Queensland, two major laws cover negligence claims: the Civil Liability Act 2003 and the Personal Injuries Proceedings Act 2002. These laws establish the legal requirements and procedures to claim compensation when you are harmed because of another person’s negligent actions.
Understanding common defences in negligence cases, like contributory negligence and inherent risk, can be helpful when you evaluate the potential outcomes of a case in QLD. Does this sound complicated? We understand how tricky these laws can be, and how frustrated you might be feeling. That’s why we’re here to help. Contact WT Compensation Lawyers today and speak to one of our seasoned lawyers!
What is Negligence in Law?
Negligence in law can happen when someone does not satisfy or uphold a “duty of care”. This means that their actions fall short of what a reasonable person would do to prevent harm. This duty of care requires a person to act in a way that avoids causing injury to others in situations where harm is foreseeable. An example of negligence in law that most of us can easily understand is drink driving. As a driver, you know that you must not drive under the influence of alcohol because you could harm others, and this harm is foreseeable.
In Queensland, to prove negligence you must show that a duty of care was owed and not met, and that this failure led to injury or damage. This concept applies in various areas, including medical treatment, road safety, and workplace practices.
Four Key Elements to Establish Negligence
To sue for negligence damages in Queensland, you (the plaintiff) must prove four main elements. First, there must have been a duty of care, which means the defendant had a legal responsibility to act in a way that would prevent harm to others.
Second, you must show that the defendant breached this duty by acting carelessly or failing to act at all. Third, you must show or prove causation – this shows that your injury is a direct result of the defendant’s actions or lack of action.
Finally, you’ll need to submit evidence of damages, meaning you must prove that you’ve suffered harm or loss because of the breach of duty. Together, these factors provide you with the legal right to sue for negligence.
1. Duty of Care
A duty of care exists when it’s reasonable to believe that one person’s actions could affect the safety of another. In Queensland law, this duty applies to many relationships, for example, the relationship between:
- property owners (or occupiers) and visitors or clients
- all road users (drivers, pedestrians, cyclists, etc.)
- manufacturers and consumers
- employers and employees
- doctors and patients
The duty of care means that both individuals and organisations must act responsibly to prevent foreseeable harm to those around them.
2. Breach of Duty
Courts determine a breach by comparing the defendant’s actions to what a “reasonable person” would do under similar circumstances. Key factors include the foreseeability of the risk, the potential severity of harm, and the effort needed to prevent it. If the defendant’s actions fall short of these standards, a breach is established.
3. Causation
To prove causation, Queensland courts often use the “but for” test – would the harm have occurred if not for the defendant’s actions? Both factual causation (a direct link) and legal causation (the appropriateness of holding the defendant responsible) must be established.
4. Damages
Damages that can be claimed in Queensland include both economic losses, such as medical expenses or lost income, and non-economic losses, like pain and suffering. These compensatory damages aim to put the injured person (or plaintiff) in the position they would have been in if the injury had not occurred.
Types of Negligence Claims in Queensland
| Type of Claim | Description and Examples |
|---|---|
| Motor Vehicle Accidents |
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| Slip and Fall Accidents |
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| Workplace Accidents |
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| Medical Negligence Claims |
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| Professional Negligence Claims |
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| Product Liability |
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| Public Liability Claims |
|
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Steps for Filing a Negligence Claim in QLD
To file a negligence claim in Queensland, you’ll need to follow a structured process to build a strong case and get compensation for your injuries or losses. Each step helps to establish the facts, gather evidence, and, if needed, proceed through court to resolve the claim.
1. Seek Medical Attention
Immediately following the incident, prioritise your health by seeking medical care. This is also important because you’ll need medical records of your injuries, which can support your claim by documenting the impact of the incident.
2. Gather Evidence
Collect relevant evidence, including photos of the accident scene, witness statements, medical records, police reports, and any other documentation, like accident or maintenance reports. Strong evidence is very important for proving negligence.
3. Consult a Personal Injury Lawyer
Contact a personal injury lawyer to assess your claim. Your lawyer will guide you through the legal steps, assist you in gathering more evidence, and handle communications with the involved parties or insurance. Your lawyer will also be able to give you an estimate of the compensation you should receive for your common law claim.
4. File a Notice of Claim
In Queensland, you must file a Notice of Claim with the responsible party, typically within 9 months of the incident or 1 month after engaging a lawyer. This notice formally sets up your claim and includes details about the incident and your injuries.
5. Negotiate a Settlement
If the other party accepts liability, negotiations for a settlement will follow. Settlements often cover medical expenses, lost income, and other damages, such as pain and suffering, related to the incident. Many cases are resolved at this stage.
6. Filing a Lawsuit
If a settlement cannot be reached, your lawyer may advise you to file a formal lawsuit. For a formal lawsuit, you’ll need to lodge a claim and statement of claim in court, which explains the details of your case and the compensation you are asking for. The other party (defendant) will be formally notified of the lawsuit and given the chance to respond.
7. Trial
If your case goes to trial, both parties present their evidence before a judge (and possibly a jury), who will decide on liability and compensation. During the trial, witness testimonies, expert reports, and other evidence will be used to support each side’s arguments.
Time Limits for Filing a Claim
In Queensland, strict time limits are set for negligence claims, and are enforced under the Limitation of Actions Act 1974. If you miss these deadlines, you can lose the right to pursue a claim. The time frames vary depending on the age of the claimant, the type of incident, and how it happened.
General Time Limits
For adults, the general time limit to file a negligence claim is 3 years from the date of the injury. This applies to most personal injury cases, including motor vehicle accidents, public liability claims, and medical negligence. If you do not file a claim within this period, generally, you will not be able to pursue compensation.
Cases Involving Children
For children injured before they turn 18, the time limit is extended. Children have until 3years after their 18th birthday to lodge a claim, which gives them until they turn 21 to file. Even if parents or guardians choose to wait until the child reaches adulthood to file, they must still notify the at-fault party within 9 months of the incident or 1 month of seeking legal advice, whichever comes first.
Compensation and Damages in Negligence Cases
In Queensland, victims of negligence may be entitled to compensation covering both financial losses and less tangible impacts, like pain and suffering, emotional distress, or psychological injuries. Compensation aims to restore the injured party to the position they would have been in if the negligence had not occurred.
Types of Damages for Negligence
- Economic Damages: These cover measurable financial losses, such as medical expenses, rehabilitation costs, lost income, and superannuation losses. Economic damages are calculated based on actual financial losses that can be directly linked to the injury.
- Non-Economic Damages: These relate to intangible losses, including pain and suffering, psychological injuries, loss of enjoyment of life, or emotional distress. Non-economic damages are generally harder to calculate and must have evidence of how the injury has impacted your life.
Factors Influencing Compensation Amounts
We’ve outlined the factors influencing compensation payouts below:
| Factor | Effect |
|---|---|
| Severity of Injury | The more severe, the higher the payout |
| Impact on Daily Life | Those with ongoing limitations may receive a higher amount |
| Financial Losses | Medical bills, rehabilitation costs, and lost wages can add to the final payout |
| Permanent Disability | Permanent disability usually leads to higher payout amounts |
| Level of Negligence by Responsible Party | Where gross negligence or intentional harm is involved, courts may award extra damages |
| Partial Fault | If the injured person is found to be partially responsible, the amount is reduced |
| Age and Life Expectancy | Younger claimants may get a higher payout to cover more years of possible struggle with disabilities |
| Medical History | If the injury is made worse by existing conditions or previous unrelated injuries, the amount may be lowered to only reflect the current case’s harm |
Severity of Injury
The compensation generally increases with the seriousness of the injury. Severe injuries that result in long-term disability or permanent damage are awarded higher damages because of the lasting impact on your life.
Impact on Daily Life
Compensation will reflect how the injury affects your ability to perform daily tasks, including work, hobbies, and general everyday activities. If you face ongoing limitations or need assistance for routine activities, you may receive increased damages to cover these long-term challenges.
Financial Losses
Courts also review the direct economic impact of the injury, including medical bills, rehabilitation costs, and lost earnings. The compensation usually covers past and future financial losses, which recognises that you may have limited earning potential because of the injury.
Permanent Disability
If the injury results in permanent disability, compensation is generally higher. Permanent disabilities influence the claimant’s overall quality of life and may lead to lifelong medical expenses, mobility aids, and adaptations to living arrangements. All of these aspects will increase the compensation required to meet these needs.
Level of Negligence by the Responsible Party
The compensation amount may be influenced by the degree of negligence displayed by the responsible party. In cases where gross negligence or intentional harm is involved, courts may award additional damages, including punitive damages, to reflect the severity of the defendant’s actions.
Partial Fault
If you are found partially at fault for the accident, compensation may be reduced. Queensland applies a “contributory negligence” principle, so damages are adjusted based on the percentage of fault attributed to the claimant.
Age and Life Expectancy
A claimant’s age and life expectancy can influence compensation. Younger claimants may receive higher damages to compensate them for the longer period over which they will experience the injury’s effects, whereas older people may receive reduced amounts because of their shorter remaining lifespan.
Medical History
A claimant’s medical history or pre-existing conditions can affect compensation. If prior injuries or health issues contributed to the severity of the injury, the court may adjust the compensation to reflect only the additional harm caused by the current incidents.
Calculation of Damages
In Queensland, damages in negligence cases are calculated based on several specific heads of damage. Each head of damage addresses a different type of loss, from financial expenses to the impact on quality of life.
The assessment process uses an Injury Scale Value (ISV), which assigns a score to injuries to quantify pain and suffering. This ISV score helps courts determine the appropriate compensation amount based on the injury’s severity.
- General Damages: For pain, suffering, and loss of enjoyment; based on ISV (0–100) with maximums at just over $400,000
- Economic Damages:
- Past Income Loss: Earnings lost from injury to court date
- Future Income Loss: Expected earnings loss due to reduced capacity
- Superannuation Loss: 9.5% on past, 11.3% on future earnings
- Medical and Care Costs: Past/future medical expenses, rehab, and assistive needs
- Care and Assistance: Costs for ongoing professional or family-provided care
Get Legal Advice
At WT Compensation Lawyers, we work on a no win, no fee basis. We’ll guide you through the negligence claim process with care, expertise, and transparency.
Book a consultation with our friendly legal team to discuss your situation. We’ll provide clear guidance on the next steps and potential fees, so you can get started with confidence, knowing you’re supported by compassionate professionals every step of the way.
Negligence Claims QLD FAQs
The Queensland Workers’ Compensation Scheme affects negligence claims by providing two options: statutory benefits and common law claims. Statutory benefits cover medical costs and income support regardless of fault, allowing quick access to assistance. For additional compensation, workers may file a common law claim if employer negligence is proven, which can result in higher payouts but restricts further access to statutory benefits.
Yes, you can make a claim in Queensland even if you were partially at fault for the incident. Queensland follows the principle of contributory negligence, meaning that if you are found partially responsible, your compensation may be reduced based on your level of fault. For example, if you are deemed 25% responsible, your final compensation will be reduced by 25%. This approach allows you to still claim compensation, even when you share some blame for the accident.
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