Negligence is not a single idea. It is four separate questions.
Every Queensland personal injury claim rests on negligence. Not in the loose sense of carelessness, but in the precise legal sense: a breach of a duty of care that caused measurable harm. Those four elements, duty, breach, causation, and damage, are each a separate hurdle. A claimant who can establish three of the four has not established negligence. The High Court confirmed the structure in Wyong Shire Council v Shirt (1980) 146 CLR 40, and Queensland’s Civil Liability Act 2003 (Qld) has since given the framework statutory form.
Understanding how the four elements work, and where they tend to be contested, is essential to understanding why some personal injury claims succeed and others do not.
Duty of care: who owes it and to whom.
A duty of care exists where it is reasonably foreseeable that a person in the defendant’s position could harm a person in the plaintiff’s position by acting carelessly. The concept is broad and has been extended progressively by case law, but it is not unlimited.
The Civil Liability Act 2003 (Qld) s 9 codifies the general principles. Sections 10 and 11 qualify the scope of any duty: a defendant generally owes no duty in respect of an obvious risk (s 13), and the duty does not require warning against risks that a reasonable person would have been aware of without being told. These limitations matter in practice. A person who trips on a step that any reasonable person would have noticed faces real difficulty establishing that the occupier owed them a duty to do something about it.
Relationships in which a duty of care is well established include: drivers to other road users and pedestrians; employers to employees; occupiers of premises to entrants; health professionals to patients; product manufacturers to consumers. In each case the duty is shaped by the specific relationship and its context.
Breach: what a reasonable person would have done.
Once a duty is established, the question becomes whether it was breached. The standard under the Civil Liability Act 2003 (Qld) s 9 is objective: what would a reasonable person in the defendant’s position have done? The defendant’s actual knowledge, resources, or intentions are less relevant than what a reasonable person similarly situated would have appreciated and done.
The High Court in Wyong Shire Council v Shirt set out the factors relevant to the breach calculus. The probability that the relevant act or omission would cause harm, the likely seriousness of that harm, the burden of taking precautions, and the social utility of the activity. These remain the touchstones under the CLA framework. A court will not hold a defendant to have breached their duty simply because an accident occurred. The question is whether a reasonable person would have taken different precautions given what was known or knowable at the time.
For professionals, the CLA applies a modified standard. Section 22 provides that a professional does not breach their duty of care merely by acting in a way that was widely accepted as competent professional practice at the time, even if a body of professional opinion holds a contrary view. Medical negligence claims operate within this framework: the defendant’s conduct is assessed against established professional standards, not simply against hindsight.
Causation: the breach must actually cause the harm.
Causation is where many claims that are strong on duty and breach become complex. The test under Civil Liability Act 2003 (Qld) s 11 has two components.
First, factual causation: was the breach a necessary condition of the harm? This is the “but for” test. If the plaintiff would have suffered the same injury regardless of the defendant’s breach, factual causation is not established. A wet floor that the plaintiff would have slipped on anyway, because they were distracted and looking at their phone, raises a causation issue.
Second, scope of liability: is it appropriate to hold the defendant liable for the type of harm that resulted? This addresses remoteness. Some harm is so indirect or unpredictable that, even if the breach was technically a “but for” cause, it falls outside the scope of the defendant’s responsibility.
In cases involving pre-existing conditions, causation becomes particularly important. A defendant is not liable for the full extent of an injury that would have occurred anyway because of a pre-existing condition. But the thin skull rule, confirmed in *Dulieu v White & Sons* [1901] 2 KB 669 and applied in Australia, holds that a defendant takes their plaintiff as they find them: if the plaintiff was more vulnerable to injury than an ordinary person, the defendant cannot escape liability for the full extent of the damage simply because a person without that vulnerability would have suffered less.
Examples of negligence across different contexts.
The four-element structure applies consistently, but the evidence that goes to each element differs depending on the setting.
Motor vehicles. A driver who sends a text message and fails to brake in time has breached the duty owed to other road users. Causation is usually straightforward: the collision would not have happened but for the failure to brake. Damages are assessed under the CTP scheme administered under the Motor Accident Insurance Act 1994 (Qld).
Occupiers. A shopping centre that fails to implement an adequate cleaning system, or that clears up a spill but does not warn customers while the floor is still damp, may breach the duty owed to shoppers. The key evidential questions are whether the hazard existed, for how long, and whether the system of inspection and maintenance was adequate in the circumstances.
Employers. An employer who requires workers to lift heavy loads without adequate training or equipment, or who fails to address a reported safety hazard, may breach the duty owed to their employees. The parallel operation of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) means most work injuries are initially dealt with through the statutory scheme, but a common law negligence claim remains available in appropriate cases.
Health professionals. A doctor who fails to diagnose a condition that a competent practitioner in their position would have identified, and whose failure delays treatment with consequential harm, may be liable for that consequential harm. The causal connection between the failure to diagnose and the additional harm suffered is often the central issue in medical negligence claims.
Contributory negligence: when the plaintiff is partly responsible.
Queensland applies comparative contributory negligence. Under Civil Liability Act 2003 (Qld) s 23, if the plaintiff’s own failure to take reasonable care for their own safety contributed to the injury, the court reduces the damages by the proportion representing that contribution.
This is not an all-or-nothing defence. A plaintiff who was wearing headphones and failed to hear a cyclist’s warning, and who was then struck by that cyclist riding negligently, may have their damages reduced by 20% for their own failure to take care, while the cyclist remains liable for the remaining 80%. The court weighs the relative degrees of fault, not simply whether each party was careless.
Some obvious risk situations under CLA s 13 go further: if the plaintiff engaged in an activity whose risk was obvious, the defendant may owe no duty at all in relation to that risk, and contributory negligence does not arise because there is no breach to apportion against.
What this means for a claim.
Understanding the four-element structure helps explain why two accidents that look superficially similar can produce very different legal outcomes. Two people slip on a wet floor in a shopping centre. One slips in an area that staff had just wet-mopped and immediately placed warning signs around. The other slips in a puddle that a nearby security camera shows had been visible for 40 minutes without any staff response. The legal positions of those two claimants are materially different, even though the physical circumstances are nearly identical.
The evidence that goes to each element, not the bare fact of injury, determines whether a claim succeeds. For an overview of the types of personal injury claims Fraser Lawyers handles in Queensland, see the personal injury services page.
If you would like to discuss your matter, you can book a consultation or call (07) 5554 6116.
