Tort Law - Negligence

Statutory Law of Negligence - State of Victoria

Because statutory law trumps common law, the following provisions dictate the shape of the law, wherever they conflict with common law. Where they concur with common law, the judicial decisions, including those above, have the effect of elaborating on what Parliament has enacted, and restraining change in the law of negligence. Common law rules not addressed by statutes remain unchanged.

 

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 - not quoting the Act verbatim -  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 IV – 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.

Part IX—Volunteer protection

37           Protection of volunteers from liability

Volunteers engaged in community work organised by a community organisation are not liable for anything they do or abstain from doing, in good faith.

Community work is given a very broad definition in Section 36 encompassing lots of philanthropic and cultural works, and a community organisation is defined in Section 34 as virtually any registered organisation that runs community work.

39           Provisions concerning the liability of community organisations

Notwithstanding volunteers’ immunity, a community organisation itself can be liable for damage caused by them.

Part X – Negligence

Division 2 – Duty of Care

48           General Principles

A Person is not negligent in failing to take precautions against a risk of harm unless:

  • the risk was foreseen or ought to have been foreseeable, and

  • it was not insignificant, and

  • a reasonable person under the circumstances would have taken precautions necessary to prevent the harm.

In determining whether a reasonable person would have taken precautions, the court is to consider, among other things:

(a)    the probability that the harm would occur,

(b)    the likely seriousness of the harm,

(c)    the burden of taking precautions,

(d)    the social utility of the activity that creates the risk.

49           Other principles
  • The burden of taking precautions includes the burden of taking precautions to avoid similar risks.

  • The fact that a risk of harm could have been avoided by doing something differently does not of itself give rise to liability.

  • If a defendant subsequently takes action to eliminate the risk in question does not of itself affect liability nor does it constitute an admission of liability.

50           Duty to warn of risk—reasonable care

A person’s duty of care is fulfilled simply by warning a person that the risk exists, and taking reasonable care in giving the warning.

Safety warning signs therefore are placed with good reason and are of concern when gathering evidence on any matter where negligence is in question.

There is doubt where signs are so profuse or to opportunity to read that the plaintiff could not as this does not constitute taking reasonable care in giving a warning.

Division 3 – Causation

51           General Principles

Whether the alleged negligent act or omission caused the alleged harm depends on whether:

  • The negligence was a necessary condition of the occurrence of the harm.

  • That it is appropriate for the scope of the negligent party’s liability to extend to the alleged harm.

If, in an appropriate case, the alleged negligence cannot be established as a necessary precondition of the harm, the court is to consider whether some causal link exists and whether responsibility for harm should be imposed on the defendant anyhow. The court also must justify the imposition of responsibility.

Where relevant the court is also to consider what actions the plaintiff would have taken had the alleged negligence not taken place. This allows the court to consider the likelihood and severity of the harm alleged to have been caused by the defendant relative to what would have occurred anyhow.

52           Burden of proof

The plaintiff bears the burden of proof at all times.

Division 4 – Awareness of Risk

53           Meaning of obvious risk

An obvious risk is one that would be obvious to a reasonable person in the position of the defendant. It includes risks that are easy to see or that are common knowledge. The probability of an obvious risk materialising, however, may be low. It may be considered obvious even if it or a necessary precondition is not prominent, conspicuous or physically observable. An obvious risk does not include risks created by a person’s error or oversight.

54           Voluntary Assumption of Risk

If the plaintiff voluntarily accepted an obvious risk then they cannot expect the defendant to have protected them. If the defence of voluntary assumption of risk is raised, then the defendant has the onus of proof.

This does not apply to claims related to professional services, health services or employment.

55           No liability for materialisation of inherent risk

An inherent risk is something that cannot be avoided by the exercise of reasonable care. There is no liability for the occurrence of such risks.

 56          Plaintiff to prove unawareness of risk

When it is alleged that the defendant failed to warn the plaintiff of a risk or provide certain information, the plaintiff has the onus of proof that they were unaware of the risk or of information they allege to have lacked.

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

If a defendant who holds themselves out as possessing a particular skill, whether they acted with due care will be judged on what level of skill is expected of qualified professionals in the same field at the same date.

This provision prevents quacks from escaping liability by alleging a lack of expertise. Providing for the date eliminates applying today’s standards and scientific knowledge to things done years ago.

59           Standard of care for professionals

Professionals are held not liable if they acted in a manner accepted in Australia by a significant number of respected peer practitioners as a competent practice.

However, if the court determines that the peer opinion is unreasonable, then it does not offer a defence.

The fact of differing opinions does not eliminate the defence. Peer professional opinion does not have to be universally accepted.

60           Duty to warn of risk

Section 59 does not affect the duty of professionals to warn of the risks involved in their services.

Division 6—Non-delegable duties and vicarious liability

61           Liability based on non-delegable duty

The assessment of liability for a breach of a non-delegable duty of care is the same as the assessment of liability for vicarious liability.

Division 7—Contributory Negligence

62           Standard of care for contributory negligence

Whether a plaintiff has negligently contributed to the harm they allege is to be judge on the basis that the standard of care expected of them is that of a reasonable person in the position of the plaintiff, and the matter is to be determined on the basis of what the plaintiff knew or ought to have known.

63           Contributory negligence can defeat claim

Damages awarded to a plaintiff who contributed to the incurred harm can be reduced by up to 100 percent.

Part XI – Mental Harm

71           Effect of this Part on the common law

This Part is not intended to affect the equivalent common law rules.

72           Mental harm – duty of care

There is no duty of care unless the defendant foresaw or ought to have foreseen that a person of normal fortitude might, under the circumstances, suffer a recognised psychiatric illness if reasonable care were not taken.

The court is to consider:

  • Whether the harm resulted from sudden shock

  • Whether the plaintiff witnessed at the scene a person being killed, injured or put in danger

  • The nature of the relationship between the Plaintiff and any person killed, injure dor put in danger

  • Whether there was a pre-existing relationship between the plaintiff and the defendant.

This section is not applicable if the defendant knew or ought to have known that the plaintiff was not of normal fortitude.

73           Limitation on recovery of damages for pure mental harm arising from shock

A plaintiff is not entitled to damages for a claim as referred to by section 72, unless the plaintiff witnessed a person being killed, injured or put in danger, and the plaintiff was in a close relationship with the victim.

The plaintiff is ineligible for damages if the victim they witnessed would for reason of any law, have been unable to recover damages.

74           Limitation on recovery of damages for consequential mental harm

A plaintiff cannot recover damages for consequential mental harm – that is, mental harm arising from a physical injury that was caused negligently – unless:

  • The defendant foresaw or ought to have foreseen that a person of normal fortitude would, under the circumstances, suffer a recognised psychiatric illness if care was not taken

  • The defendant knew or ought to have known that the defendant was not a person of normal fortitude and might suffer a recognised psychiatric illness.

75           Liability for economic loss for mental harm

Damages are not payable for alleged mental harm unless the harm is a recognised psychiatric illness.

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