The Law Handbook 2024

Chapter 10.1: Negligence and injury 927 If the defendant fails to do something that a reasonable person would do, or does something that a reasonable person would not do, the law states that there has been a breach of the duty of care. The plaintiff has been injured Establishing that there has been negligence does not necessarily mean that the plaintiff is entitled to damages. The plaintiff must show that there has been an actual injury. For example, a plaintiff who has been exposed to dangerous chemicals as a result of the negligence of another must show an actual injury, not just the mere possibility of injury. Connection between the negligent conduct and the plaintiff’s injury The plaintiff must also show that there is a reasonably close connection between the defendant’s conduct and the injuries suffered by the plaintiff or the deceased person. Either the damage must not be too remote from the wrong conduct, or the wrong conduct must be an effective cause of the injuries. However, the wrong conduct does not need to be the only cause of injury. The courts must consider whether the plaintiff or the deceased person engaged in conduct that will either defeat the action for damages completely or reduce the amount of damages recovered. Defence of volenti non fit injuria The defence of volenti non fit injuria (consent to the injury) is applicable if the defendant can prove that the plaintiff had full knowledge of the risk of injury to themselves, and had voluntarily assumed or undertaken the liability resulting from that risk. For example, a plaintiff is injured in a collision while travelling in a car with a drunk driver. If this defence succeeds, it defeats the plaintiff’s claim for damages, even if the defendant was negligent. If the defendant can show that the negligence of the plaintiff or the deceased person also contributed to the damage sustained, this will only reduce the plaintiff’s claim for damages by the percentage contribution found by a judge or jury. For example, if the court finds that the plaintiff or the deceased person was 10 per cent to blame for their own injuries because of not wearing a seat belt at the time of the collision, the amount of damages payable to the plaintiff will be reduced by 10 per cent. Breach of statutory duty In deciding whether a defendant has been negligent, a judge or a jury may have to consider whether there has been a breach of a statutory duty. For example, a person may have been injured in a collision where the defendant had failed to give way to the right in accordance with the Road Safety (Drivers) Regulations 2019 (Vic). Such a breach is at least evidence of negligence, as there has been a breach of the common law duty to take care. Courts have also used a breach of a statutory duty as being negligent in itself, particularly where the statute does not provide criminal penalties for the breach of that statute. Note that these principles have now been significantly altered by legislation, and in particular by the Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic) (see ‘Key legislation: Wrongs Act’, below). Assessing damages Once the court is satisfied that the defendant has been negligent, it then must proceed to assess damages. Damages paid as a lump sum Damages are generally assessed as a lump sum on a ‘once and for all’ basis. Such an assessment finalises the injured party’s rights and there is no right to come back to the court to have damages further assessed at a later stage. However, the Wrongs Act 1958 (Vic) (‘ Wrongs Act )’ allows a court to make an order for a ‘structured settlement’ by way of periodic payments funded by an annuity or other means (pt VC). The lump sum is assessed by adding together various amounts assessed under individual heads of damages. The courts make a distinction between special damages and general damages. Special damages Special damages generally refers to out-of-pocket expenses. These may include medical and like expenses such as ambulance fees, loss of earnings to the date of trial, and other incidental expenses such as home help. Because of their very nature, special damages are generally easily quantifiable. General damages General damages covers such matters as loss of earning capacity in the future, pain and suffering, loss of enjoyment of life and disfigurement. They are