Last updated 16 August 2016 This chapter is currently under review.
A plaintiff must establish that the defendant’s breach of duty has caused the injury for which they are claiming damages. If a plaintiff suffers no injury or damage as a result of the defendant’s conduct, no liability arises, irrespective of the negligence of the defendant.
In determining whether a defendant’s breach of duty has caused a plaintiff damage, the courts have used several tests including:
- the ‘but for’ test (i.e. would the injury have occurred but for the wrongful act?)
- the common sense and experience test. This test requires a practical consideration of all of the facts and circumstances of the case, value judgments and policy considerations.
Sections 11 of the Civil Liability Act 2003 (Qld) (Civil Liability Act) and 305D of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) set out the current test to establish ‘causation’. In essence, the plaintiff must show that the defendant’s breach of duty caused or materially contributed to the plaintiff’s injury and the damage suffered.
Once the plaintiff has established ‘causation’, the court will then consider whether the injury and any consequent damage suffered by the plaintiff are ‘too remote’.
Damage will not be too remote provided there was a real risk that damage of the same kind might occur to the plaintiff or a person in the same class as the plaintiff, and the risk would not have been brushed aside as farfetched by a reasonable person in the defendant’s position.
In some circumstances where the plaintiff may have a particular vulnerability or preexisting susceptibility, a defendant will still be liable for the damage caused even though the damage was far more severe than would otherwise be the case but for the susceptibility.
For example, a person with eyesight only in one eye who suffers an injury to that eye is entitled to compensation for the fact that the defendant’s negligence has blinded them, despite the fact that the damage would have been less severe had the plaintiff had eyesight in both eyes to begin with.
In a negligence action, damage can arise from a personal injury and the financial consequences flowing from that injury or damage to property. In assessing the amount of damages payable for personal injury, a distinction is drawn between special damages and general damages.
Special damages are those losses capable of precise mathematical calculation suffered by the plaintiff. This includes out-of-pocket expenses such as medical expenses, travelling expenses, the costs of medications, the loss of wages both in the past and into the future, the loss of superannuation benefits on those wages and interest on such amount of those damages occurring in the past.
General damages are those losses that are incapable of precise calculation including compensation for the physical or psychological injuries sustained, the pain and suffering, and loss of enjoyment of life caused as a result of those injuries. Because general damages are incapable of precise calculation, it is necessary to provide as much evidence to the court as possible about the injuries and their resulting effects to enable the court to assess the amount of compensation which should be paid to the plaintiff.
The Civil Liability Act and the WCR Act provide rules regarding the entitlement to and assessment of different types of damages available to plaintiffs in a claim for damages for personal injuries.
Financial loss, other than that which flows from personal injury or property damage (pure economic loss) may also attract compensation or damages in certain circumstances (see the chapter on Consumers and Contracts).
Mitigation of loss
At common law, a plaintiff is under a duty to mitigate their loss. This means a plaintiff must take reasonable steps to reduce the extent of any loss arising from an injury. A defendant will not be liable for any loss that should have been mitigated.
For example, if a plaintiff is unable to return to their usual type of employment as a result of their injury, the plaintiff has a positive obligation to make reasonable attempts to rehabilitate and re-enter the workforce to the extent of their residual capacity to do so.
This common law duty has been adopted in the Civil Liability Act, the WCR Act and the Motor Accident Insurance Act 1994 (Qld).