DEFENDING A PERSONAL INJURY CLAIM

Personal injury compensation claims can arise in many different circumstances. Common examples include motor vehicle accidents, workplace injuries, public liability claims, medical negligence and claims arising from sexual abuse.

Although each type of claim has its own rules, many personal injury matters involve the same basic question. Has one person or organisation caused injury to another person by failing to take reasonable care?

In a negligence claim, the injured person is usually called the plaintiff. The person or organisation defending the claim is usually called the defendant. The plaintiff carries the burden of proving the claim. That means the plaintiff must prove that a duty of care was owed, that the duty was breached and that the breach caused injury or loss.

A duty of care means that the defendant had a legal responsibility to take reasonable care to avoid causing harm. Breach means that the defendant failed to meet the required standard of care. Causation means that the breach caused or materially contributed to the injury. The plaintiff must also prove loss, which may include pain and suffering, medical expenses, loss of income or other consequences.

A defendant does not need to disprove everything from the start. The plaintiff must first establish the legal basis for the claim. Once that happens, the defendant may rely on one or more defences. These defences may defeat the claim entirely or reduce the amount of compensation payable.

The most common personal injury defences include limitation periods, voluntary assumption of risk, contributory negligence, obvious risk and pre-existing injury. Each defence operates differently. Some focus on delay. Some focus on the plaintiff’s own conduct. Others focus on whether the risk should have been understood without a warning.

Limitation periods

A limitation period is a legal time limit for starting court proceedings. If a claim is brought too late, the defendant may argue that the claim is statute barred. If that argument succeeds, the claim may fail even if the injury was serious.

In Victoria, many personal injury claims must be commenced within three years from the date the cause of action is discoverable. Discoverability usually involves knowledge of the injury, knowledge that the injury was caused by the fault of another person and knowledge that the injury is sufficiently serious to justify bringing a proceeding. There can also be longer stop periods and special rules for people under a disability. The authorised version of the Limitation of Actions Act 1958 is current in Victoria, and the general three-year framework is commonly described in Victorian personal injury limitation guidance.

Limitation issues can be complex. The date of injury is not always the same as the date of discoverability. A person may know they are injured before they understand that the injury was caused by negligence. This can happen in medical negligence cases, psychological injury claims and some occupational injury matters.

Delay should never be ignored. Evidence can become harder to obtain. Witnesses may become unavailable. Records may be lost or destroyed. Even where an extension of time is possible, a delayed claim may become harder to prove.

There are important exceptions. In Victoria, limitation periods have been abolished for many civil claims involving child abuse. That includes claims for personal injury caused by child sexual abuse, serious physical abuse and psychological abuse connected with that abuse. These reforms mean historical child abuse claims may still be brought many years after the abuse occurred.

Adult sexual assault claims may involve different issues. Motor vehicle accident claims and workers compensation matters can also involve statutory schemes with their own procedures and time limits. Any person considering a claim should get advice early, especially where delay may become an issue.

Voluntary assumption of risk

Voluntary assumption of risk is sometimes called volenti non fit injuria. It applies where a defendant argues that the plaintiff voluntarily accepted the risk of injury.

This defence is often raised in sporting, recreational and activity-based claims. It may also arise where a person knowingly enters a risky situation. The central question is not simply whether the activity involved danger. Many ordinary activities involve some risk. The question is whether the plaintiff was aware of the relevant risk and accepted it.

In Victoria, the Wrongs Act 1958 deals with voluntary assumption of risk. If the defence is raised and the risk was an obvious risk, the person who suffered harm is presumed to have been aware of that risk. The plaintiff may still rebut that presumption by proving that they were not aware of it.

This defence is not always easy to establish. A person may accept one risk without accepting another. A footballer may accept the ordinary risks of a lawful tackle. That does not mean they accept the risk of being deliberately struck behind play. A person using recreational equipment may accept some risk of falling. That does not mean they accept risk created by defective maintenance.

The defence depends on the precise risk that caused the injury. It also depends on what the plaintiff knew, what was obvious and what was reasonable in the circumstances.

Contributory negligence

Contributory negligence does not usually defeat a claim entirely. Instead, it can reduce the amount of damages awarded.

This defence applies where the plaintiff failed to take reasonable care for their own safety. The defendant argues that the plaintiff’s conduct contributed to the injury or made the injury worse. If the court accepts that argument, compensation may be reduced by a percentage.

Common examples include failing to wear a seatbelt, ignoring safety instructions, entering a clearly unsafe area or failing to take reasonable care while moving through a hazard. In workplace matters, the analysis can be more complicated. Workers may be acting under pressure, following instructions or working in systems controlled by an employer.

Contributory negligence is not assessed with hindsight alone. The court considers what a reasonable person in the plaintiff’s position would have done. It also considers the circumstances faced at the time. A momentary lapse may be treated differently from a deliberate decision to ignore an obvious danger.

The reduction in damages depends on responsibility. A small contribution may lead to a modest reduction. Serious carelessness may lead to a substantial reduction. In some cases, contributory negligence becomes one of the most important issues in the claim.

Obvious risk

A defendant may also argue that the injury resulted from an obvious risk. In Victoria, an obvious risk is a risk that would have been obvious to a reasonable person in the plaintiff’s position. Obvious risks include risks that are patent or matters of common knowledge. A risk may be obvious even if it has a low probability of occurring. A risk may also be obvious even if it is not physically prominent or easy to see.

The obvious risk defence often overlaps with voluntary assumption of risk. It may also affect whether a defendant had to warn the plaintiff. A defendant is not always required to warn about a risk that a reasonable person would already understand.

That does not mean every visible danger protects a defendant. The law still looks at the circumstances. A risk caused by poor maintenance, defective equipment or unsafe systems may not be treated as obvious in the same way. The Wrongs Act also makes clear that a risk from a thing is not an obvious risk if it was created by a failure to properly operate, maintain, replace, prepare or care for the thing, unless that failure itself was obvious.

This distinction matters. A wet floor in a supermarket may be obvious in some circumstances. It may not be obvious if the lighting is poor or the hazard is hidden. A sporting activity may involve ordinary risk. It may not include risk caused by an unsafe playing surface that should have been repaired.

Pre-existing injury

A defendant may also argue that the plaintiff’s injury existed before the incident. This does not always defeat a claim. Many personal injury claims involve aggravation of an earlier condition.

The real issue is causation. Did the incident cause a new injury? Did it aggravate an existing injury? Did it accelerate symptoms that would have appeared later? Or would the plaintiff have suffered the same problems even if the incident had never occurred?

Medical evidence is often critical. Treating doctors may provide evidence about symptoms before and after the incident. Independent experts may comment on diagnosis, causation, impairment and prognosis. Imaging, hospital records and employment records may also be relevant.

A pre-existing condition can reduce damages if the evidence shows that some loss was not caused by the defendant. For example, a person with longstanding back pain may still recover damages if an accident made the condition worse. The claim may be reduced if part of the ongoing disability would have occurred anyway.

This defence is often fact-sensitive. It should not be assumed that a prior injury ends the claim. It may simply narrow the dispute.

Why defences matter

Personal injury defences can affect liability, settlement value and litigation strategy. A defendant may deny that any duty was breached. A defendant may accept that an incident occurred but dispute causation. A defendant may admit some fault while arguing that damages should be reduced.

For plaintiffs, these issues must be addressed early. A claim should be supported by clear evidence about what happened, how the injury occurred and what loss followed. Medical evidence should be consistent where possible. Witness accounts should be obtained before memories fade. Documents should be preserved.

For defendants, these defences can be powerful. A limitation defence may end a claim. Contributory negligence may reduce damages. Obvious risk may narrow or defeat liability. A pre-existing injury argument may substantially reduce the value of a claim.

Every personal injury claim turns on its own facts. The same defence may succeed in one case and fail in another. The outcome depends on evidence, timing, medical opinion and the legal framework that applies to the particular type of claim.

This page provides general information only. It is not a substitute for legal advice about any specific claim.