Legal Concepts
What is the concept of proximity in negligence law?
•Proximity refers to the closeness or directness of the relationship between the plaintiff and the defendant.
•In Queensland law, it’s a key factor in determining whether a duty of care exists.
Describe the duty of care concept.
The duty of care in Queensland law refers to the legal obligation to avoid causing harm to others. This duty is established based on the relationship between the parties and the foreseeability of harm.
What is the Act that covers negligence in QLD?
Civil Liability Act 2003 (QLD)
What is the standard of proof required in a civil claim?
•The standard of proof in a civil claim in Queensland is the balance of probabilities, meaning that the plaintiff must prove their case is more likely than not.
What is contributory negligence?
Contributory negligence occurs when the plaintiff’s own actions contributed to their harm. In Queensland, this can reduce the damages awarded.
Define causation in the context of a negligence claim.
Causation requires showing that the defendant’s breach of duty directly caused the plaintiff’s harm. Queensland law uses the "but for" test, asking whether the harm would have occurred "but for" the defendant’s actions.
What constitutes a breach of duty of care?
A breach of duty of care occurs when a defendant fails to meet the standard of care expected in the circumstances. In Queensland, this is judged based on what a reasonable person would do.
Which case established the concept of proximity?
Jaensch v. Coffey [1984] established proximity in Australian law, including Queensland, emphasising the need for a close and direct relationship between the parties.
In the case of Jaensch v Coffey (1984), the High Court of Australia considered the issue of reasonable foreseeability in the context of a duty of care. The case involved a negligent driver who was held responsible for the sudden nervous shock sustained by the claimant, who witnessed her husband's serious injuries from a motor vehicle accident.
How does the standard of proof in a criminal case differ from that in a civil case?
In a criminal case, the standard of proof is "beyond a reasonable doubt," which is a higher standard than in civil cases, where the balance of probabilities is used.
Describe the concept of obvious risk in negligence defences
An obvious risk is one that would be clear to a reasonable person, and under Queensland law, defendants may not be liable if the plaintiff voluntarily assumed such a risk.
What does foreseeability mean in negligence cases?
Foreseeability means that the harm was a reasonably predictable result of the defendant’s actions. In Queensland, it’s an essential element in establishing a duty of care and breach.
Explain the significance of injury/damage in negligence.
Injury/damage in Queensland negligence law refers to the harm suffered by the plaintiff, which must be proven for a successful claim. This can include physical, economic, or psychological harm.
Explain the importance of Bolam v. Friern Hospital Management Committee [1957] in establishing the standard of care.
Bolam v. Friern Hospital Management Committee [1957] influenced Queensland law by establishing that a professional’s standard of care is judged by the standards of the profession at the time.
The defendant was the body who employed a doctor who had not given a mentally-ill patient (the claimant) muscle-relaxant drugs nor restrained them prior to giving them electro-convulsive therapy. The claimant suffered injuries during the procedure. The claimant sued the defendant, claiming the doctor was negligent for not restraining them or giving them the drug.
The High Court held that the doctor had not breached his duty to the patient, and so the defendant was not liable.
McNair J set out the test for determining the standard of care owed by medical professionals to their patients (sometimes referred to as the ‘Bolam test’). The professional will not be in breach of their duty of care if they acted in a manner which was in accordance with practices accepted as proper by a responsible body of other medical professionals with expertise in that particular area. If this is established, it does not matter that there are others with expertise who would disagree with the practice.
As the methods used in this case were approved of by a responsible portion of the medical profession, there was no breach.
What are the possible outcomes in a civil case versus a criminal case?
Civil cases in Queensland typically result in compensation or an injunction, while criminal cases may lead to penalties such as fines or imprisonment.
What is a dangerous recreational activity in the context of negligence law?
A dangerous recreational activity is one that involves a significant risk of physical harm. Queensland law provides that participants in these activities may not claim negligence if injured during such activities.
Explain the term assumption of risk.
Assumption of risk occurs when the plaintiff knowingly and voluntarily engages in an activity with inherent risks, thus absolving the defendant of liability under Queensland law.
What is the legal concept of neighbour, and how does it relate to negligence?
The legal concept of neighbour comes from Donoghue v. Stevenson [1932] and refers to those who are closely and directly affected by one’s actions. In Queensland, this concept underpins the duty of care owed to others.
Which case highlighted the contributory negligence defence in Australian law?
Nader v. Urban Transit Authority of NSW [1985] highlighted contributory negligence in Australian law, including Queensland, where the plaintiff’s own negligence contributed to their harm, reducing the damages awarded.
In the Australian case of Nader v Urban Transit Authority of NSW, the plaintiff was a 10-year-old boy who struck his head on a bus stop pole while alighting from a slowly moving bus. He developed a rare psychological condition known as Ganser Syndrome. The defendant argued that the illness resulted from his family's response to the accident.
Discuss the implications of the burden of proof in civil cases.
•The burden of proof in civil cases lies with the plaintiff, who must prove their case on the balance of probabilities.
•In criminal cases, the prosecution must prove guilt beyond a reasonable doubt.
How can a defendant use assumption of risk as a defence?
Assumption of risk as a defence in Queensland requires proof that the plaintiff fully understood and accepted the risks associated with an activity.
What is the difference between omission and a direct act in negligence?
An omission is a failure to act, which can lead to negligence if there is a duty to act. In Queensland, liability for omissions arises where the defendant had a duty to prevent harm but failed to do so.
To claim negligence in Queensland, three elements must be proven:
How did Wyong Shire Council v. Shirt [1980] influence the understanding of foreseeability?
Wyong Shire Council v. Shirt [1980] clarified the test for foreseeability in Queensland, stating that a risk is foreseeable if it is not far-fetched or fanciful.
This case considered the issue of negligence and whether or not a council was negligent by erecting a sign in a local lake indicating deep water when in fact the water was shallow. The court examined the standard of care and whether or not the council acted reasonably in relation to the risk of injury to waterskiiers in the circumstances.
What is the test applied to determine a breach of duty of care?
•The key question is whether the defendant has failed to meet the standard of care that a reasonable person would have exercised in the circumstances. This is known as the "reasonable person" test.
•The risk was foreseeable (i.e., a risk of which the person knew or ought reasonably to have known).
•The risk was not insignificant.
•In the circumstances, a reasonable person in the position of the defendant would have taken precautions.
What is the Bolam principle?
The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC[1] in which the court concluded that a doctor might be able to avoid a claim for negligence if he can prove that other medical professionals would have acted in the same way.