Introduction

Not everyone who has suffered loss, damage or injury may claim against a person or organisation they believe is the cause of their harm – a cause of action is required.

What is a cause of action?

A cause of action is the technical legal name for the set of facts which give rise to a claim enforceable in court. It is a legally recognised wrong that creates the right to sue. Each cause of action consists of points the plaintiff must prove and all of these elements must be satisfied in order to take court action.

A cause of action may arise from either a law passed by the parliament (statute) or from the common law. The common law has evolved gradually over time, and is law made by judges when they give their judgment on a case brought before them. This process has led to the development of various causes of action which may be used to bring an action in the courts. Which court will hear your case depends on the type of cause of action.

A lawyer cannot help you in taking your case to court if you do not have a cause of action. The court cannot hear your dispute nor make a decision without a valid cause of action. If you decide to proceed to court without a valid cause of action, the court is likely to dismiss your claim and order you to pay costs.

Why do I need a cause of action?

There are public policy reasons for only allowing certain causes of action. People are always suffering loss or injury but if everyone was allowed to sue anyone without having a proper cause of action, the courts would be clogged with hearing every case brought before them. This would mean that the people who do have a clear and justifiable case may not get the justice they deserve.

For these reasons, the legal system has evolved and formed sets of conditions to separate cases that do have a likely cause of action from those that do not.

Examples of causes of action

There are many specific causes of action. The following are examples of some common causes of action that may be taken to court.

• If a person unjustifiably enters or remains on your property without your permission, even where no damage is done, you may have an action in trespass to land. This can range from someone squatting on your land, to someone dumping their rubbish on your lawn. If this is a one-off event such as a drunk person sleeping in your front lawn, the police can be called to remove the offender. However, if it is continued, you can seek an order (an injunction) from the court to stop the trespass and ask the court for damages.
• If you have made a legally binding agreement with a person and they fail to do what you both agreed to, you may have an action against them for breach of contract. This could include when you hire a plumber to install new pipes but instead the plumber only changes the washers in the taps.
• If a person is substantially and unreasonably interfering with the use of your land without physically interfering with it, you may have an action in private nuisance. This could include a neighbour flooding your land, a neighbour deliberately watching and recording you, or a neighbour who has regular, loud, late-night parties involving shouting and swearing. However, you must not be particularly susceptible to the interference and the interference must be substantial and unreasonable.
• If a person directly, intentionally, unlawfully restrains you against your will preventing your escape, you may have an action for false imprisonment. This could include somebody locking you in a vehicle or an office and not allowing you to leave, or bullies cornering you in a room. However, false imprisonment does not apply to lawful police detention.
• If a person or organisation causes you or your property harm unintentionally by not exercising proper care and skill, you may have a claim in negligence. The law of negligence is quite complex and broad, and may include an injury you suffer from a driver who is speeding, or a doctor who leaves a medical instrument in your body after an operation they perform on you.
• If as a tenant you are asked to leave your rental property without proper reasons by your landlord, you may have a cause of action to the Small Claims Tribunal under the Residential Tenancies Act 1994 (Qld). This may include the situation where after you asked the landlord to fix the broken oven they asked you to leave the property with no grounds for this request. The landlord cannot ask you to leave the property to retaliate against you for taking actions to enforce your legal rights.

What can I do if I have a valid cause of action?

Even if you seem to have a cause of action, this does not mean that you will automatically win the case or receive monetary or another form of compensation. There are many other factors which must be considered, but establishing a cause of action is the first step in going to court.

In order to successfully commence a legal action you must also have standing to appear before the court and evidence that the person accused of causing the harm did in fact cause the harm. Please see QPILCH's factsheets on Standing and Involvement in Legal Proceedings and Evidence and Proof in Civil Proceedings for more information on these issues. 

You should also ensure that you commence your matter in the appropriate court or tribunal. For further information see the Queensland Courts website at: www.courts.qld.gov.au/101.htm.

Contact us

Please contact QPILCH by:

E:    services@qpilch.org.au
T:    07 3846 6317
F:    07 3846 6311
P:    QPILCH, PO Box 3631, South Brisbane BC, Qld 4101