Information that applies to many claims, incl. motor vehicle personal injury in Queensland
You may be interested in the legislation that applies to many claims, including motor vehicle and public liability claims, for personal injury in Queensland.
We have included excerpts from the Civil Liability Act 2003 (QLD) as follows, but if you wish to view this legislation in it’s entirety, please go to legislation.qld.gov.au
(As of 1 July 2016)
Chapter 2 – Civil Liability For Harm, Part 1 Breach of Duty
DIVISION 1 – GENERAL STANDARD OF CARE | 9 General principles
1. A person does not breach a duty to take precautions against a risk of harm unless-
the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
the risk was not insignificant; and
in the circumstances, a reasonable person in the position of the person would have taken the precautions.
2. In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)–
the probability that the harm would occur if care were not taken;
the likely seriousness of the harm;
the burden of taking precautions to avoid the risk of harm;
the social utility of the activity that creates the risk of harm.
Division 2 – Causation
11. General principles
1. A decision that a breach of duty caused particular harm comprises the following elements–
the breach of duty was a necessary condition of the occurrence of the harm (factual causation);
it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability)
Division 3 – Assumption Of Risk
14. Persons suffering harm presumed to be aware of obvious risks
1. If, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk.
2. For this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
15. No proactive duty to warn of obvious risk
1. A person (defendant) does not owe a duty to another person (plaintiff) to warn of an obvious risk to the plaintiff.
2. Subsection (1) does not apply if–
the plaintiff has requested advice or information about the risk from the defendant; or
the defendant is required by a written law to warn the plaintiff of the risk; or
the defendant is a professional, other than a doctor, and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.
3. Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
16. No liability for materialisation of inherent risk
A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
An inherent risk is a risk of something occurring that can not be avoided by the exercise of reasonable care and skill.
This section does not operate to exclude liability in connection with a duty to warn of a risk.
Division 4 – Dangerous Recreational Activities
17. Application of div 4
1. This division applies only in relation to liability in negligence for harm to a person resulting from a dangerous recreational activity engaged in by the plaintiff.
19. No liability for personal injury suffered from obvious risks of dangerous recreational activities
1. A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm.
2. This section applies whether or not the person suffering harm was aware of the risk.
Division 6 – Contributory Negligence
23. Standard of care in relation to contributory negligence
1. The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm.
2. For that purpose–
the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.
24. Contributory negligence can defeat claim
In deciding the extent of a reduction in damages by reason of contributory negligence, a court may decide a reduction of 100% if the court considers it just and equitable to do so, with the result that the claim for damages is defeated.
Part 3 – Division 1 – Public & Other Authorities
36. Proceedings against public or other authorities based on breach of statutory duty
1. This section applies to a proceeding that is based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority.
2. For the purposes of the proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.
Part 4 – Exclusion From Claiming Damages Because Of Particular Behavior
DIVISION 2 – INTOXICATION
46. Effect of intoxication on duty and standard of care
1. The following principles apply in relation to the effect that a person’s intoxication has on the duty and standard of care that the person is owed–
in deciding whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person’s capacity to exercise reasonable care and skill is impaired as a result of being intoxicated;
a person is not owed a duty of care merely because the person is intoxicated;
the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person.
2. Subsection (1) does not affect a liability arising out of conduct happening on licensed premises.
3. In this section– licensed premises see the Liquor Act 1992, section 4.
47 Presumption of contributory negligence if person who suffers harm is intoxicated
1. This section applies if a person who suffered harm was intoxicated at the time of the breach of duty giving rise to a claim for damages and contributory negligence is alleged by the defendant.
2. Contributory negligence will, subject to this section, be presumed.
3. The person may only rebut the presumption by establishing on the balance of probabilities–
that the intoxication did not contribute to the breach of duty; or
that the intoxication was not self-induced.
4. Unless the person rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.
5. If, in the case of a motor vehicle accident, the person who suffered harm was the driver of a motor vehicle involved in the accident and the evidence establishes–
that the concentration of alcohol in the driver’s blood was 150 mg or more of alcohol in 100mL of blood; or
that the driver was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle; the minimum reduction prescribed by subsection (4) is increased to 50%.
48. Presumption of contributory negligence if person who suffers harm relies on care and skill of person known to be intoxicated
1. This section applies to a person who suffered harm (plaintiff) who–
was at least 16 years at the time of the breach of duty giving rise to the harm; and
relied on the care and skill of a person who was intoxicated at the time of the breach of duty (defendant); and
was aware, or ought reasonably to have been aware, that the defendant was intoxicated.
2. If the harm suffered by the plaintiff was caused through the negligence of the defendant and the defendant alleges contributory negligence on the part of the plaintiff, contributory negligence will, subject to this section, be presumed.
3. The plaintiff may only rebut the presumption if the plaintiff establishes, on the balance of probabilities, that–
the defendant’s intoxication did not contribute to the breach of duty; or
the plaintiff could not reasonably be expected to have avoided relying on the defendant’s care and skill.
4. Unless the plaintiff rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the plaintiff would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.
5. The common law defence of voluntary assumption of risk does not apply to a matter to which this section applies.
49. Additional presumption for motor vehicle accident
1. This section applies to a plaintiff and defendant mentioned in section 48.
the breach of duty giving rise to the harm suffered by the plaintiff was a motor vehicle accident; and
the plaintiff was a passenger in the motor vehicle; and
the motor vehicle was driven by the defendant; and either–
the concentration of alcohol in the defendant’s blood was 150mg or more of alcohol in 100ml of blood; or
the defendant was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle; the minimum reduction prescribed by section 48(4) is increased to 50%.
3. The plaintiff is taken, for this section, to rely on the care and skill of the defendant.
Chapter 3, part 3 – Assessment of Damages For Personal Injury
50. Application of ch 3
Subject to section 5, this chapter applies only in relation to an award of personal injury damages.
51. Definitions for ch 3
In this chapter general damages means damages for–
pain and suffering; or
loss of amenities of life; or
loss of expectation of life; or
injury means personal injury.
55. When earnings can not be precisely calculated
This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.
The limitation mentioned in section 54(2) applies to an award of damages under this section.
59. Damages for gratuitous services
1. Damages for gratuitous services are not to be awarded unless–
the services are necessary; and
the need for the services arises solely out of the injury in relation to which damages are awarded; and
the services are provided, or are to be provided–
for at least 6 hours per week; and
for at least 6 months.
2. Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.
3. In assessing damages for gratuitous services, a court must take into account–
any offsetting benefit the service provider obtains through providing the services; and
periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.
61. Assessment by court of injury scale
1. If general damages are to be awarded by a court in relation to an injury arising after 1 December 2002, the court must assess an injury scale value as follows–
the injured person’s total general damages must be assigned a numerical value (injury scale value) on a scale running from 0 to 100;
the scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind;
in assessing the injury scale value, the court must–
assess the injury scale value under any rules provided under a regulation; and
have regard to the injury scale values given to similar injuries in previous proceedings.
2. If a court assesses an injury scale value for a particular injury to be more or less than any injury scale value prescribed for or attributed to similar particular injuries under subsection (1)(c), the court must state the factors on which the assessment is based that justify the assessed injury scale value.
62. Calculation of general damages
For an injury arising after 1 December 2002, general damages must be calculated by reference to the general damages calculation provisions applying to the period within which the injury arose.
In this section— general damages calculation provisions, applying to a period, means the provisions prescribed for the period under a regulation
The above is only a small excerpt from the Civil Liability Act 2003 (Qld). Most claims, including motor vehicle and public liability claims, are complex.
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