Tort Law - Negligence
Statutes - Victoria
The statutory law of negligence in Victoria is governed by the Wrongs Act 1958 (Vic). The key sections of the Act are presented hereunder in summary form with further explanations as needed.
Part IIB – Negligence – intoxication and illegal activity
14G – Consideration of intoxication and illegal activity
When determining whether there has been a breach of the defendant’s duty of care, a court is to take into consideration whether the plaintiff was intoxicated by alcohol or drugs, the degree of intoxication and whether the plaintiff was involved in illegal activity.
This rule acts in parallel with similar common law defences and directly affects the fundamental question of whether a breach of the duty of care occurred.
Part IIC - Apologies
In this Part—
apology means an expression of sorrow, regret or sympathy but does not include a clear acknowledgment of fault.
14J Apology not admission of liability
In proceedings for, or related to, the death or injury of a person, an apology, whether expressed orally or in writing, does not constitute—
(a) an admission of liability for the death or injury; or
(b) an admission of unprofessional conduct, carelessness, incompetence or unsatisfactory professional performance.
Part III – Wrongful act or neglect causing death
16 & 17 Actions for neglect resulting in death
Where negligence results in the death of the injured party, an action can be brought by the executor of the deceased estate with the deceased’s dependents as beneficiaries. If there is no executor or no action is brought within six months, then the dependents themselves may bring the action.
Part III – Contribution
23B Entitlement to contribution
Where a defendant is liable for harm caused by them, and where such harm was contributed to by another party, they may recover damages from that other party. This applies regardless of whether their negligent acts were committed jointly, but both must have liability to the same plaintiff.
The liability of a contributor to harm, in respect of their co-contributors, continues even after they have paid damages to the injured party. However, limitation periods still apply.
Contrary to the past judgments rule in the Rules of Evidence, any judgment given to the plaintiff suffering harm in the events in question is not only admissible, but is conclusive as evidence in proceedings against co-contributors.
24AAA When employer not liable to indemnify third party in relation to an injury
Any contractual term is void, that requires an employer to indemnify a third party in relation to the death or injury of a worker, occurring in the course of their employment with the employer.
Part IVAA – Proportionate liability
24AG What claims are excluded from this Part?
This part concerning proportionate liability is not applicable to claims for injuries. This does not preclude any equivalent common law rules on apportionment from applying where appropriate to any form of negligence claim.
24AI Proportionate liability for apportionable claims
Each party who is jointly responsible for harm done is liable only to a portion of the damages in accordance with their degree of responsibility in causing the harm.
The court is not to have regard to the proportion of responsibility applicable to any person or corporation that is NOT a party to the proceedings, unless the person is dead or the corporation wound-up.
Part IVA—Abolition of doctrine of common employment
24A Abolition of doctrine of common employment
The common law doctrine of common employment is abolished. Employers are liable to their employees for injuries and other loss caused negligently.
Part V—Contributory negligence
26 Liability for contributory negligence
If the damage suffered by a plaintiff is caused partly by their own failure to take reasonable care, and partly by the defendant’s wrong, then the damages awarded are to be proportionally reduced.
The claim is not necessarily defeated by a finding of contributory negligence.
If a person dies as a result of the accident and an action is brought by their dependents, then there shall be no reduction in damages for contributory negligence.
Part VIA – Good Samaritan Protection
31B Protection of good Samaritans
A good Samaritan is a person who provides assistance, advice or care to another in an emergency without expecting any benefit in return, and where doing so is at a risk of death or injury.
Good Samaritans are not liable in any civil proceeding for anything they did or did not do while acting as a good Samaritan.
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Part IX—Volunteer protection
37 Protection of volunteers from liability
39 Provisions concerning the liability of community organisations
Part X – Negligence
Division 2 – Duty of Care
48 General Principles
49 Other principles
50 Duty to warn of risk—reasonable care
Division 3 – Causation
51 General Principles
52 Burden of proof
Division 4 – Awareness of Risk
53 Meaning of obvious risk
54 Voluntary Assumption of Risk
55 No liability for materialisation of inherent risk
56 Plaintiff to prove unawareness of risk
Division 5—Negligence of professionals and persons professing particular skills
58 Standard of care to be expected of persons holding out as possessing a particular skill
59 Standard of care for professionals
60 Duty to warn of risk
Part XI – Mental Harm
71 Effect of this Part on the common law
72 Mental harm – duty of care
73 Limitation on recovery of damages for pure mental harm arising from shock
74 Limitation on recovery of damages for consequential mental harm
75 Liability for economic loss for mental harm
 Alexander v Perpetual Trustees WA Ltd  216 CLR 109.