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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Defending A Personal Injuries Claim


Personal injury compensation claims can be made in many areas, including motor vehicle accidents, worker’s compensation, public liability, medical negligence and product liability. Many people are covered by insurance which will pay for their defence of a personal injury claim, such as public liability insurance or motor vehicle insurance. A lawyer can be engaged to defend the case by the insurer or by the defendant themselves.

Once the injured party (the plaintiff), has proven the three elements of negligence – a duty of care was owed, that duty was breached, and the breach resulted in injury – the defendant then has the burden of escaping liability by proving a defence.

The law allows an at-fault person or body to avoid liability, partly or fully, when certain defences are available. This article outlines some of those defences.

Time limit expired

Strict time limits apply to personal injury claims. The “limitation period” is three years from when injury was suffered or the person became aware of it. If a claim is made after the 3 years, and there is no reasonable excuse for the delay, the claim cannot continue.

Assumption of risk

Under the legal doctrine of “voluntary assumption of risk”, the person doing the action is said to have assumed the risk of injury either by behaving in a particular way or due to the nature of the activity. This doctrine is typically applied to sporting injuries.

To succeed in this defence, the defendant must prove on the balance of probabilities that the plaintiff:

  • knew of the facts about the risk of harm;
  • fully appreciated the danger inherent in the circumstances;
  • freely and willingly agreed to encounter the risk.

This means when an activity is considered dangerous, and a person has done nothing to make the activity more dangerous than expected, no damages can be recovered.

This defence is known as a complete defence because it totally absolves the defendant of liability.

Obvious risks

Legislation exists in all states to deal with “obvious risks”. An obvious risk is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. It includes a risk that is patent or common knowledge but can be a risk that is not “prominent, conspicuous, or physically observable”, or one that has a low probability of occurring. A defendant does not have duty to warn a person of an obvious risk.

Contributory negligence

Under the legal doctrine of “contributory negligence”, the blame for the injury is shared because the plaintiff is said to have contributed to the injury by failing to take reasonable care for their own safety. The amount of damages is subsequently reduced.

This defence is known as a partial defence because it allows the apportioning of liability depending on relative degree of fault. A magistrate will assign a percentage of fault to each person’s actions.

To succeed in this defence, the defendant must prove on the balance of probabilities that:

  • the plaintiff failed to take reasonable care for their own safety and protection;
  • the damage suffered by the plaintiff was partly due to their own conduct;
  • the damage suffered by the plaintiff wad within the class of risk to which the plaintiff was exposed.

The standard of care required from the plaintiff is determined by assessing what a reasonable person in the position of the injured person might do, and on the basis of what the injured person knew or should reasonably have known at the time of the incident.

Existing injury

To use this defence, a person will need to prove the plaintiff’s injuries existed before the incident in question. The incident could, however, have aggravated an existing injury. Expert evidence can be provided by a range of parties, depending on the claim. This evidence can include medical reports and testimony from medical professionals such as surgeons, psychologists or occupational therapists. Evidence given by a medical professional may be refuted by a second opinion from an impartial medical professional. This can lead to parts of a claim being dismissed or a reduction in classification of the degree of injury claimed and the amount of damages sought.

Joint illegal enterprise

At common law, this defence is a complete defence. It applies if the plaintiff’s injury arose out of or in the course of the plaintiff and the defendant engaging in illegal activity.

To succeed in this defence, the defendant must prove on the balance of probabilities that:

  • they and the plaintiff we engaged in a joint illegal enterprise together; and
  • there is a significant connection between the negligence claimed of and the commission of the illegal act, which justifies denying liability.

Criminal conduct

Many states have legislation that limits or disentitles a plaintiff from claiming damages if the plaintiff was engaged in serious criminal conduct at the time of their injury.

Contractual defences

There may be evidence the plaintiff contracted away their right to sue for injury. A contract signed by the plaintiff may have contained terms that limited or removed liability.

For advice or representation in any legal matter, please contact Armstrong Legal.

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