Introduction

Gavel and stethescope - Defences
A defendant may raise defences to a Plaintiff’s claim in negligence. A defendant may attempt to counter the Plaintiff’s arguments about duty of care, breach and causation in his or her defence. If a Defendant can show that there was no duty of care, or no breach of duty,  or causation was not satisfied the entire cause of action will be defeated.

There are also specific defences that may be pleaded for which the Defendant bears the burden of proving the defence. This means that the Defendant must lead argument and evidence to prove that the defence is satisfied.

Defences can be absolute — and therefore defeat a claim; or they may be partial, and lead to a reduction in damages.

Read more below!

Defences

The Plaintiff is Out of Time

Recall from the opening page on medical negligence that there are time limits within which a claim must be brought.

The time limit for personal injury in all Australian states and territories is three years. 1 There are also circumstances in which a longer period may apply. For example, if a person has a mental disability or is under the age of 18. 2 The Court may also extend the time limit if the circumstances of the case warrant an extension. 3

The specific operation of the law must be researched in the respective state/territory in which a person suffered injury, in order to understand when time begins to run, and the circumstances in which an extension of time might be granted. The personal circumstances of each person means that generally, legal advice will need to be obtained.

If a person is out of time, and the Court will not grant an extension, a claim in negligence for personal injury will be barred.

Alarm clock - defences - out of time

Contributory Negligence

If a plaintiff fails to take reasonable care of themselves and this contributes to the harm or loss that he or she suffers, then a defendant may claim that the plaintiff’s own contributory negligence should be taken into consideration.

Contributory negligence is a ‘defence’ in that the compensation payable to the Plaintiff must be reduced in such circumstances, to such extent as is just and equitable. The Court will determine what is ‘just and equitable’ by considering the plaintiff’s share in the responsibility for the damage.

For example, if a doctor has repeatedly asked a patient to go and have some tests done, and the patient has not gone and his/her condition worsens, then the patient may have contributed to the harm they suffer as a result.

Voluntary Assumption of Risk

Voluntary assumption of risk is a defence that reflects the view (from the Latin phrase ‘Volenti non fit injuria‘) that “to one who is willing no legal wrong is done”.

It is a complete defence, meaning that if a defendant can prove voluntary assumption of risk, the Plaintiff’s claim will fail.

Because Volenti non fit injuria means that an injury cannot be done to a willing person, it is often equated with the defence of ‘consent’ to intentional torts, for example trespass to person. However, one should note that  voluntary assumption of risk involves the Plaintiff consenting to the risk of an invasion of his or her interest, whereas in the defence of ‘consent’, the Plaintiff consents to the actual invasion of his or her interest.  Both nevertheless,  require a subjective consent which can be express or implied from P’s conduct

When trying to establish a defence based on voluntary assumption of risk, a Defendant must prove that the Plaintiff:

  • perceived the existence of the danger (knew of the danger) (note this is actual knowledge; not what the Plaintiff ought to have known);
  • fully appreciated the risk/danger (scope of the risk); and
  • voluntarily accepted the risk (can be express or implied)

Proving such things is no easy task. For example, when considering whether voluntary assumption of risk applies, it must be the particular risk the Plaintiff accepted and voluntarily undertook, not all risks that flow from the relationship between the Plaintiff and the Defendant.  In Ranieri v Ranieri the Court said:

“it is important to see what is ‘the risk’ (if any) that the P has voluntarily accepted, for the acceptance of one risk is not necessarily the acceptance of all risks” 4

Note in Victoria that  statutory provisions now apply to the defence of voluntary assumption of risk when the risk is considered ‘obvious’. 5 In Victoria, when the risk is ‘obvious’ the Plaintiff (in a general case in negligence) is assumed to have known of the risk. 6 The Plaintiff would than bear the onus of proving that he or she did not know of the risk. The Defendant must still however prove the other two elements of the defence. However, the statutory provisions do not apply in a case relating to the provision of or the failure to provide a professional service or health service. 7  or in respect of risks associated with work done by one person for another. 8 A health practitioner would always therefore have the onus of proving all three elements of the defence if they wished to raise it.

In health contexts, the defence would be very difficult to prove. For example, ‘just because a person agrees to undertake a risk, for example undergoing surgery, this does not mean they accept the risk of it being performed negligently, or that they fully comprehend the scope of the risk in such circumstances.’ 9

Peer Professional Practice

Defences - Group of doctors peer professional practice
In all jurisdictions except the Australian Capital Territory and the Northern Territory legislation provides that a defendant may plead that he or she met the standard of care expected of a professional (or ‘health professional’ in Western Australia). 10

Such a professional will not be considered to have breached a duty of care in the provision of a professional service if it is established that he or she acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion as competent professional service. 11

The defence will not succeed if the Court considers the professional opinion is ‘irrational’ (in New South Wales, South Australia, Queensland and Tasmania) 12 or ‘unreasonable’ (Victoria). 13

In Western Australia nothing prevents a health professional from being liable for negligence ‘if the practice in accordance with which the health professional acted or omitted to do something is … so unreasonable that no reasonable health professional… could have acted or omitted to do something in accordance with that practice’. 14

Find out more

Notes:

  1. Limitation of Actions Act 1958 (Vic) s5(1A); Limitation of Actions Act 1936 (SA) s36; Limitation Act 2005 (WA) s 14; Limitations Act 1981 (NT) s 12(1)(b); Limitation of Actions Act 1974 (QLD) s 11; Limitation Act 1969 (NSW) ss 18A(2) and 50C; Limitation Act 1985 (ACT) s 16B; Limitation Act 1974 (Tas) s 5A(a).
  2. For example see, Limitation Acts: (Vic) s27E; (SA) s45 and 45A; (WA) ss 30-37; (NT) s36; QLD) s79; (NSW) s52; (ACT) s30; (Tas) s26.
  3. For example see Limitation Acts: (Vic) s 27K; (SA) s 48; (WA) Part 3, Division 3; (NT) s 44; (QLD) s 31(2); (NSW) s 19; (ACT) s 36(4); (Tas) s5A(5) and s26.
  4. Ranieri v Ranieri (1973) 7 SASR 418.
  5. Wrongs Act 1958 (Vic) s 53.
  6. Wrongs Act 1958 (Vic) s 54(1).
  7. Wrongs Act 1958 (Vic) s 54(2)(a).
  8. Wrongs Act 1958 (Vic) s 54(2)(a).
  9. Sonia Allan and Meredith Blake, The Patient and Practitioner: Health Law and Ethics in Australia (2014), pp224-225.
  10. ‘Health Professional’ is defined in Western Australia as including Aboriginal and Torres Strait Islander health practice; Chinese medicine; chiropractic; dental; medical; medical radiation practice; nursing and midwifery; occupational therapy; optometry; osteopathy; pharmacy; physiotherapy; podiatry; psychology; or any other person who practises a discipline or profession in the health area that involves the application of a body of learning: Civil Liability Act 2002 (WA), s 5PA.
  11. Civil Liability Act 2002 (NSW), ss 5O(1) and 5P; Civil Liability Act 1936 (SA), s 41(1); Civil Liability Act 2002 (WA), s 5PB(1); Civil Liability Act 2002 (TAS), s 22(1).
  12. Civil Liability Act 2002 (NSW), s 5O(2); Civil Liability Act 1936 (SA), s 41(2); Civil Liability Act 2003 (Qld), s 22(2); Civil Liability Act 2002 (Tas), s 22(2).
  13. Wrongs Act 1958 (Vic), s 59(2).
  14. Civil Liability Act 2002 (WA), s 5PB(4).