The Law Handbook 2024

Chapter 10.1: Negligence and injury 929 2 the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic); 3 the Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic) (‘ Law of Negligence Act ’); and 4 the Wrongs Amendment Act 2015 (Vic). These Acts have greatly affected claims for damages in personal injury cases that do not involve transport accidents, work injuries, or other injuries as specified. It is important to note that many of the changes made by these Acts apply to injuries that occurred before the Acts commenced. These changes are set out in detail below. The changes enacted in the Law of Negligence Act do not apply to transport injuries, work injuries, dust/tobacco-related injuries, and other specified cases (see ‘Law of Negligence Act amendments’, below). Note that all the following references to legislation are references to the Wrongs Act (as amended). Protected events The Wrongs Act gives protection from claims for damages for personal injury to ‘good Samaritans’ helping at emergencies or accidents, volunteers providing services for community work and donors of food (pts VIA, IX, VIB). However, some exceptions will apply to those cases. Also, the making of an apology or a waiver or reduction of fees cannot be an admission of liability or poor performance in civil proceedings (pt IIC). This provision will be particularly relevant in cases involving professionals such as doctors or lawyers. In considering a claim for damages, a court can also take into account whether a plaintiff was intoxicated by drugs or alcohol voluntarily consumed, as well as whether the plaintiff was engaged in illegal activity (pt IIB). Organisational sexual abuse A ‘relevant organisation’ may be liable in negligence for the abuse of a child under its care, supervision or responsibility on proof by an individual associated with that organisation, if it did not take reasonable precautions to prevent the abuse in question. These provisions only apply to abuse that took place after 1 July 2017 (see pt XIII Wrongs Act). Pursuant to the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic), child abuse victims can sue an organisational defendant that is an unincorporated non-government organisation that uses trusts to conduct its activities. This makes it easier for child abuse victims to sue an appropriate organisation (e.g. a religious organisation). These provisions apply irrespective of the date of the abuse. Law of Negligence Act amendments The Law of Negligence Act has substantially altered the law relating to negligence. The Law of Negligence Act amendments apply to all claims for damages resulting from negligence whether brought in tort, in contract, under statute or otherwise (s 44), except for transport injuries, work injuries, dust and tobacco-related injuries and other claims as specified (s 45). Dust-related injuries include asbestos dust injuries. The amendments radically affect the previous common law principles relating to negligence and other aspects as set out in the Law of Negligence Act. The following is a brief summary of relevant provisions of the Law of Negligence Act. Further commentary will have to await consideration by the courts, and probable further legislation. Duty of care A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable and ‘not insignificant’ (s 48). The fact that a risk of harm could have been avoided by doing something in a different way (or something that was in fact done later) does not affect liability (or constitute an admission of liability) in connection with the risk (s 49). Causation The negligence must be a necessary condition of the harm (factual causation). Also, it must be shown that it is appropriate for the scope of the negligent person’s liability to extend to the caused harm (scope of liability) (s 51). The plaintiff has to prove any fact relevant to the issue of causation (s 52). Awareness of risk In most cases, if there is an ‘obvious risk’, the plaintiff must prove that they were unaware of the risk (s 54). A person is not liable in negligence for harm suffered by another person as a result of an ‘inherent risk’.