B U R T & D A V I E S PERSONAL INJURY LAWYERS TAC COMMON LAW CLAIMS -

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1 TAC 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. For the Plaintiff to succeed in a common law claim it is necessary to prove that the Plaintiff s injuries were caused by the Defendant s negligence. To be negligent, the Defendant must have done something that a reasonably prudent person would not have done or 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 fairly 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.

2 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. If the Court (Judge or Jury) found that the Plaintiff had not discharged the burden of proof to the necessary standard (i.e. on the balance of probabilities) then the Plaintiff would not succeed in the common law claim. If the Court found that there was a case for the Defendant to answer (a prime facie case), the Defendant would then be required to call evidence. If the Court, having heard the evidence for the Defendant, came to the conclusion that the Defendant was not negligent then the Plaintiff would lose the action. In some cases, the facts would easily enable a Plaintiff to prove that the injuries resulted from the Defendant s negligence. However, in some instances, those same facts could support an allegation by the Defendant that the Plaintiff contributed to the occurrence of the accident through his/her own negligence. This is called an allegation or defence of contributory negligence. For example, if the Plaintiff was driving his motor vehicle along a major road and the Defendant was driving his motor vehicle along a minor road and the two vehicles collided in an intersection where the Defendant had been confronted by a Give Way sign, one could reasonably expect the Plaintiff to be able to prove that the Defendant s negligence caused his injuries. However, if it was a cross-intersection in open countryside with no obstructions to prevent the Plaintiff seeing the Defendant s vehicle, and if it was obvious that the - 2 -

3 Defendant s vehicle was travelling at a high rate of speed such that it was clearly not going to be able to stop at the intersection, a finding of contributory negligence could be made against the Plaintiff for having failed to keep a proper lookout for his own safety. In such a case, 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 invariably 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. Allegations of contributory negligence will be made in cases where: The Plaintiff failed to wear a correctly fastened and adjusted seat belt The Plaintiff travelled as a passenger in a motor vehicle driven by a Defendant who had consumed alcohol The Plaintiff travelled as a passenger in a motor vehicle driven by an unlicensed driver The Plaintiff travelled as a passenger in a motor vehicle driven by the Defendant at very high speed for a considerable period of time such as to indicate that the Plaintiff was a willing party in conduct that was clearly dangerous - 3 -

4 The Plaintiff failed to take reasonable steps to protect himself/herself from a risk that a reasonable person would not have taken. (NB: The above list is not an exhaustive list of all the instances in which contributory negligence may be claimed but is 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. In the context of transport accident cases the involvement of alcohol is a significant issue. The issue is made more significant by virtue of the fact that the TAC not only plays the role of the insurer in transport accident common law claims but also 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 in its role as the compulsory third party insurer (the insurer that pays damages on behalf of the Defendant) tends to argue very strongly that damages should be reduced very significantly in cases involving drink driving. Most common law claims are resolved by negotiation under the common law protocol that applies in transport accident common law claims. Under the protocol every claim must be subject to a settlement conference before legal proceedings can be issued

5 Whether TAC takes a hard line in a drink driving case will be reflected in a low settlement offer. At settlement conferences cases settle when an offer is made that is acceptable to the Plaintiff or the Defendant accepts an offer that the Plaintiff makes. Where a case does not resolve by negotiation at such a conference, the Plaintiff can issue legal proceedings. The TAC invariably files Jury notices in such cases so that the matter, when it reaches trial, will be heard by a Judge and Jury of six people. The TAC s advertising campaign against drink driving has been so effective over the years that Juries have found a tendency to penalise people injured in circumstances where they knowingly got into a motor vehicle driven by someone who had consulted alcohol. Obviously, every case is different. Every case has its own particular facts. However, one thing that has become clear over the years is that the TAC s road safety campaign against drink driving has substantially changed the mind set of the vast majority of Victorians from whom Juries are selected. In some cases, where the consumption of alcohol played a very major role in the occurrence of the accident, the facts might well make it difficult for the Plaintiff to prove that the Defendant was negligent at all. It is possible for the Defendant to argue that he did not owe the Plaintiff a duty to take care at all. Such a case could be a situation where the Plaintiff and Defendant had been together all day drinking, shout for shout. At the end of the long day of drinking, the Defendant offered the Plaintiff a ride home. Both were very drunk. Inevitably, the Defendant crashed the car and the Plaintiff was injured. The Plaintiff then - 5 -

6 sued the Defendant. The Defendant could argue that the Plaintiff knew or should have known that the Defendant was so intoxicated that he could not, on any reasonable basis, 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 many other defences open to a Defendant in a TAC common law claim. One such defence is illegality. For example, if a Plaintiff and Defendant, in the course of stealing a motor car, have an accident and the Plaintiff passenger sustains injury then in a subsequent claim against the Defendant, the Defendant could raise a defence of illegality and it would probably be successful. There are good public policy reasons why people involved in a joint criminal enterprise should not be able to recover common law damages. It should be borne in mind that not every case will necessarily be as straightforward as initially it might seem. The facts of every individual case can lend themselves to a number of considerations and this is the approach that will be adopted by the TAC in every instance

7 All accident circumstances should be very carefully and thoroughly investigated at the earliest stage possible. Peter Burt and Clara Davies, specialist TAC Lawyers of Burt & Davies, Level 11, 451 Little Bourke Street, Melbourne, are experts in TAC claims, in particular TAC common law claims. They are both Accredited Personal Injury Law Specialists who practice exclusively in transport accident/tac common law claims. Telephone (03) or freecall Burt & Davies