Common Law Claims – Defences

In a common law damages claim, the person who brings the claim is called the Plaintiff. The person against who the claim is brought is called the Defendant.

Proving Negligence

For a Plaintiff to succeed it is necessary to prove that the Defendant was negligent.  That is, that the Defendant’s negligence caused the Plaintiff’s injuries.

To be negligent, the Defendant must have done something that a reasonably prudent person would not have done.  Alternatively, the Defendant failed to do something that a reasonably prudent person would have done.

In the context of transport accidents, the question of negligence is usually straightforward. For example, if a driver went through a Stop sign or Give Way sign and collided with another vehicle then the Defendant would clearly have been negligent for failing to give way. Similarly, if the driver of a car collides with the rear of another vehicle, in most cases the Defendant would be found to be negligent. This is not always the case and every case must be determined on its own particular facts.

Whilst the Plaintiff bears the burden of proving negligence, the Defendant is also entitled to defend the common law claim by raising any number of Defences.

No Negligence

The Defendant might allege that there was no negligence whatsoever.

In such a case, the Plaintiff would have to prove ‘on the balance of probabilities’ that the Defendant was negligent. The Plaintiff’s case would fail if the Court (Judge or Jury) found that the Plaintiff had not discharged this burden of proof.  

If the Court finds that there is a case for the Defendant to answer, the Defendant is then required to call evidence.  In this instance, the Plaintiff has made out a prima facie case.  However, if after hearing the evidence, the Court came to the conclusion that the Defendant was not negligent then the Plaintiff would lose the action. In some cases, the facts easily prove that the Plaintiff’s injuries resulted from the Defendant’s negligence. However, in some instances, the same facts show that the Plaintiff contributed to the occurrence of the accident through his/her own negligence. This results in an allegation or defence of contributory negligence.

Contributory Negligence

For example, the Plaintiff was driving his motor vehicle along a major road.  The Defendant was driving his motor vehicle along a minor road.  The two vehicles collided in an intersection where the Defendant had a Give Way sign.  It is reasonable to expect that the Plaintiff will prove that the Defendant’s negligence caused his injuries.  However, if it was a cross-intersection in open countryside it might be different.  With no obstructions to prevent the Plaintiff seeing the Defendant’s vehicle, there could be a finding of contributory negligence.

If it was obvious that the Defendant’s vehicle was travelling at a high rate of speed such that it was not going to be able to stop at the intersection, it might be argued that the Plaintiff failed to keep a proper lookout.  A Court might find in favour of the Plaintiff but then make a finding of contributory negligence against the Plaintiff.

A finding of contributory negligence involves an attribution of responsibility expressed as a percentage. For example, in the intersectional case set out above, a Court may well find that the Plaintiff was guilty of contributory negligence to the extent of 20%. In such a case, the Plaintiff’s damages would be reduced by 20% for contributory negligence. Contributory negligence is a common defence in transport accident common law claims.

Examples of Contributory Negligence

Allegations of contributory negligence will be made in cases where the Plaintiff:

  • Failed to wear a seatbelt.  Alternatively, the seatbelt may not have been correctly fastened or adjusted.
  • Travelled as a passenger in a motor vehicle driven by a Defendant who had consumed alcohol.
  • Travelled as a passenger in a motor vehicle driven by an unlicensed driver.
  • Was travelling in a motor vehicle driven by the Defendant at very high speed for a considerable period of time.  In this instance, it may be argued that the Plaintiff was a willing party in conduct that was clearly dangerous.
  • The Plaintiff failed to take reasonable steps to protect himself/herself.

(NB: The above list is not an exhaustive list of all the instances in which contributory negligence may be claimed.  It is only intended to provide some guidance.)

The extent of the contributory negligence will depend entirely upon the individual facts of case. However, contributory negligence is a significant issue that can have a dramatic impact upon the quantum of damages actually awarded to a successful Plaintiff.

Alcohol and drugs

In transport accident cases the involvement of alcohol is often a significant issue. The issue is made more significant by virtue of the fact that the TAC has a major role in accident prevention. The TAC invests millions of dollars every year in drink driving TV campaigns such as – “Drink Drive – Bloody Idiot”.  

Consequently, the TAC tends to strongly argue that damages should be reduced very significantly in cases involving drink driving. 

Most common law claims are resolved by negotiation.  Every common law claim is the subject of a protocols settlement conference before legal proceedings are issued.

If TAC takes a hard line in a drink driving case it will be reflected in a low settlement offer.  Where a case does not resolve by negotiation at a conference, the Plaintiff can issue legal proceedings. The TAC routinely files Jury notices in Court proceedings.  As such, if the case reaches trial, it will be heard by a Judge and jury of six.  The TAC’s advertising campaign against drink driving has been very effective over the years.  As a result, juries tend to penalise people injured in circumstances involving alcohol.  In particular, where the Plaintiff knowingly got into a motor vehicle driven by someone who had consumed alcohol.

Obviously, every case is different. Every case has its own particular facts. However, one thing has become clear over the years.   The TAC’s road safety campaign against drink driving has substantially changed the mindset of the vast majority of Victorians.  And juries are selected from the general public.

Volenti Non-Fit Injuria

In some cases, alcohol plays a major role in the accident.  When this is the case the facts might make it difficult for the Plaintiff to prove negligence.  Sometimes, when alcohol is involved, a Defendant may argue that no duty was owed to the Plaintiff.  Consider this example.  The Plaintiff and Defendant had been together all day drinking.  At the end of the long day of drinking, the Defendant offers the Plaintiff a ride home.  Both were very drunk at the time.  The Defendant crashes the car and the Plaintiff is seriously injured. The Plaintiff then sues the Defendant.  The Defendant could argue that the Plaintiff knew or should have known that the Defendant was very intoxicated.  In fact, so intoxicated that the Defendant could not be expected to properly drive or manage the motor vehicle.

If a Jury accepted this argument then the Plaintiff would lose the claim. This particular defence has a Latin name – volenti non-fit injuria. In essence this means – “voluntary assumption of risk”. A volenti defence is an absolute defence to the Plaintiff’s claim. It is rare for such defences to succeed. However, the Defendant nearly always pleads contributory negligence in the alternative. Where the volenti defence is unsuccessful, the contributory negligence defence nearly always is successful and this has the effect of substantially reducing the damages that the Plaintiff is entitled to receive from the Defendant.


There are other defences open to a Defendant in a TAC common law claim.  One such defence is illegality.  For example, a Plaintiff and Defendant, in the course of stealing a motor car, have an accident.  The Plaintiff passenger sustains injury.  In a subsequent claim against the Defendant, the Defendant could raise a defence of illegality.  The defence would probably be successful.  There are public policy reasons why people involved in a joint criminal enterprise should not be able to recover common law damages.

Not every case will necessarily be as straightforward as initially it might seem. The facts of every individual case can lead  to a number of considerations.  This is the approach that will be adopted by the TAC in every instance.

All accident circumstances should be carefully and thoroughly investigated at the earliest stage possible.