The Law of Negligence

The law of negligence comes from case law or judge made law.  In Queensland that law has been brought into legislation and is now found in the Civil Liability Act 2003 (Qld)(“the Act”).  

Claims in negligence arise when a person has suffered an injury and they believe that another person or organisation is responsible for the circumstances that caused the injury to occur.  There are four main elements you need to prove for negligence. They have been developed through case law (judge made law) over many years.

Elements of Negligence

The elements are:

  1. that the person being sued (the defendant) owed a duty of care on the facts of the case to the injured person (the plaintiff);
  2. that the defendant breached that duty of care; and
  3. that the breach of that duty of care caused the damage (harm) to the injured person (causation).   

The Act has included these common law elements in the statute.  

Schedule 2 of the Act provides the definition of ‘duty of care’, section 9 deals with breach of duty and section 11  deals with causation. A summary of the sections is below:

Schedule 2: duty of care means a duty to take reasonable care or to exercise reasonable skill (or both).

Section 9: (1) A person does not breach a duty to take precautions against a risk of harm unless—
(a) the risk was reasonably foreseeable; 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.

Section 11: (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).

The plaintiff must prove all of the above elements, on the balance of probabilities, in order to provide negligence.

Case Note – Thistle Co of Australia Pty Ltd v Bretz [2018]QCA 006

Facts of the Case

On 5 October 2012 Mr Bretz was filling his car and some fuel drums at a petrol station, when he tripped over a concrete base, on which the petrol bowser stood.  Mr Bretz suffered injuries to his right shoulder and wrist. He later required surgery to his right shoulder, which was partially injured as a result of his fall. The owner of the petrol station was Thistle Company of Australia Pty Limited (“Thistle”).  

The judgment refers to Thistle as ‘the applicant’ on the appeal.  Mr Bretz sued Thistle for damages for the personal injuries he had sustained, as a result of Thistle’s alleged negligence.  

The case was heard in the District Court of Queensland, where Mr Bretz succeeded in his claim for damages for negligence.  Thistle appealed the decision to the Queensland Court of Appeal.

The Concrete Base

The concrete base had previously had a sloping edge.  It was then redesigned and rebuilt so that it had a square edge.  

The side of the square base was approximately 37 mm high and it extended out 30 cm from the edge of the petrol bowser.  The base had previously been painted yellow, but Thistle arranged for it to be painted black on 9 September 2012, due to the yellow paint being slippery, hard to keep clean and because black matched the black tarmac surface of the roadway.

After the concrete base had been painted black and before Mr Bretz’s fall, a retail manager at the petrol station had warned Thistle at a management meeting that the new black base was harder to see.

Evidence was given at the hearing in the District Court that other customers had complained about the slipperiness of the concrete base previously and that people had tripped on it.  

Risk

In the judgment the court addressed the issues of ‘risk’ in determining negligence. There are two types of risk discussed in this case; obvious risk and insignificant risk.

Obvious Risk:

‘Obvious risk’ is:

  • an argument that can be used by a defendant against a claim by an injured person
  • a risk that a person would think was obvious, on the facts of a case

(e.g. a reasonable person knows that standing directly in front of a cricket player hitting a ball could cause them serious injury)

  • an argument that the risk is so obvious to a reasonable person, that the defendant should not be held responsible for the injured person not looking out for themselves

(e.g. the defendant should not be responsible for the injury from the cricket ball, as a reasonable person would not have taken the obvious risk of standing in front of the cricketer)

There are several arguments under the Act that a defendant can use to defend a claim by an injured person.  One of them is whether the risk to the the injured plaintiff was obvious. Under section 13 of the Act an obvious risk means a risk that would be obvious to a reasonable person in that situation.  An example might be a person getting into a car, knowing the driver is very drunk and taking the risk that they might have a car accident.

When considering whether there is an obvious risk, it is important to note that:

  • Under section 15 of the Act there is no duty on a defendant to warn of an risk, if the court finds that it was an obvious one
  • If an injured person can show, on the balance of probabilities, that they were not aware of the risk, the defendant will not be able to rely on the defence of obvious risk

The Court of Appeal found that Mr Bretz was not very familiar with the petrol station.  He had only been there a few times previously. The concrete base was not high and it extended out beyond the bowser, which was an unusual design.  Experts who gave evidence at the hearing said they had not seen that type of design before. The concrete base was painted black and was hard to see next to the roadway, which was painted the same colour.  

The retail manager had warned Thistle that this risk was not obvious, but Thistle did nothing about it [19]. The court found that the risk was not obvious to a reasonable person in Mr Bretz’s position [20].

Risk not Insignificant

Insignificant risk is:

  • a risk of injury that has a low chance of occurring (e.g. getting hit by a cricket ball whilst standing behind a cricketer)
  • an argument that can be used to defend a claim by an injured person
  • a risk that a reasonable person thinks a defendant should not have to take steps to avoid for other people, as the chance of it happening is so low (the chance of a person being hit by a cricket ball when behind the cricketer is not something that the defendant has to avoid)

Under section 9 of the Act, a person does not breach their duty of care, if the risk to the injured person is found to be insignificant.  The defendant argued that, in this case, the risk of tripping was insignificant. The court did not accept this argument.

Expert evidence had been given that the concrete base created a significant hazard and that the hazard was not easy to see [28].  Complaints had been made previously of customers either slipping or tripping on the concrete base. A staff member had reported her concerns about the risk posed by the new design and colour of the concrete base. These factors meant that the risk was not insignificant [32].

Contributory Negligence

Contributory negligence occurs when:

  • the court finds that a defendant’s actions have caused an injury to a person; and
  • the injured person is partially responsible for that injury, due to their own actions
  • the court will decide that each party is partially responsible for the injury
  • the court will decide to what extent each party is responsible by way of percentage (e.g. 60% responsibility for the defendant and 40% responsibility for the injured person)
  • the court will award damages and will reduce them by the percentage that the injured person is responsible (e.g. $100,000 damages less 40% is an award of $60,000 damages to the injured person)

The legal principle of contributory negligence means that, if a defendant is found liable for negligence, the damages they have to pay can be reduced, if the plaintiff is partially at fault for their own injury.  Section 23 of the Act states that contributory negligence will apply, if plaintiff is found not to have taken reasonable care of themselves, to avoid the injury occurring.

In this case Thistle argued that Mr Bretz had not kept a good lookout at where he was walking.  The court did not accept this argument and no contributory negligence was found.

The Court of Appeal’s Decision on Negligence

The Court of Appeal found that Thistle had been negligent.  It had breached its duty of care by being aware of a reasonably foreseeable risk and not doing anything to avoid it.  That risk had caused Mr Bretz to fall and suffer his injuries.

The three judges decided unanimously that there was sufficient evidence, on the balance of probabilities, for the District Court to find that Thistle was liable for negligence and for the damages awarded.  The court  dismissed Thistle’s appeal.

The court then went on to discuss the damages awarded in the case, which will not be analysed here.  That award totalled $96,361.13 plus costs. The Court of Appeal did not change the damages awarded in the District Court.