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

14I          Definitions

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.[1]

 

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

 

 

[1] Alexander v Perpetual Trustees WA Ltd [2004] 216 CLR 109.