Public Liability Claims in Victoria: The Wrongs Act, Injury Thresholds and Time Limits

In Victoria, a claim against a shop, venue or landlord runs under the Wrongs Act 1958's codified occupiers' duty, while a claim over a footpath or road defect runs under a wholly separate Act, and neither gives Victoria the recreational-activity defences some other states have.

Victoria is one of eight jurisdictions covered in our Australia Public Liability hub, which explains what a public liability claim is and how it differs from a workplace injury, a motor accident, or a wrongful death claim. This page covers how Victoria's own Acts, defences, thresholds and time limits work.

Who You Claim Against and Under Which Act

A public liability claim in Victoria is an ordinary negligence claim brought against whoever controlled the premises or activity where the injury happened, a shop, a venue, a landlord, an event organiser, or in some cases a council or other public authority. The claim against a private occupier is governed by the Wrongs Act 1958, which codifies the occupier's duty in Part IIA and sets the general negligence, damages and contributory negligence rules that apply to the claim in Parts X, VB and VBA. A claim over a public road or footpath is different again: it runs under the separate Road Management Act 2004, discussed below. In practice, the claim is answered by whichever public liability insurer covers the occupier or authority, though the cause of action itself is against the occupier or authority, not the insurer directly.

The Occupier's Duty: Codified Under Part IIA

Victoria codifies occupiers' liability. Wrongs Act 1958, Part IIA, sections 14A to 14E, "applies in place of the rules of the common law" that determined an occupier's standard of care before the Part's predecessor Act, leaving common law otherwise unaffected. Section 14B(3) states the duty directly: an occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises, or of things done or omitted in relation to the state of the premises. A full reading of sections 14A to 14E found no separate, reduced duty for trespassers or unlawful entrants anywhere in the Part. Victoria owes the same single duty to any person on the premises, a genuine contrast with states that codify a reduced trespasser standard.

Section 14B(4) lists non-exhaustive factors for whether the duty was discharged: the gravity and likelihood of probable injury, the circumstances of the entrant's entry onto the premises, the nature of the premises, the occupier's actual or constructive knowledge of who or what was likely to be present, the entrant's age and their ability to appreciate the danger, whether the entrant was voluntarily intoxicated and to what degree, whether they were engaged in illegal activity, and the burden on the occupier of eliminating or protecting against the danger weighed against the risk to the entrant. "Occupier" extends to a landlord under an obligation to maintain or repair the premises, and "premises" extends to fixed and moveable structures including vessels, vehicles and aircraft. The Crown, as an occupier or landlord, owes the same duty as a private party.

Claims Over Footpaths and Roads: A Different Act Entirely

A trip-and-fall on a Victorian council footpath or road is not an occupiers' claim under the Wrongs Act. Section 108 of the Road Management Act 2004 states, for the avoidance of doubt, that a road authority is not an occupier of a road and a road is not premises for the purposes of Wrongs Act section 14B, expressly disapplying Part IIA to roads. Instead, the Road Management Act's own Part 6 supplies the relevant protection. Section 102 provides that a road authority is not liable for an alleged failure to remove a hazard, repair a defect or deterioration, or warn of a hazard, defect or deterioration in a road, unless the authority had actual knowledge of the particular risk at the time, a knowledge test the Act deems satisfied if the deterioration was reported to it in writing under section 115. Section 100 confirms this regime sits in addition to, not instead of, the Wrongs Act's general public-authority provisions in Part XII, sections 79 to 87, which separately require a court to weigh the authority's limited resources and its broad range of functions when assessing a breach of duty, and which set a high bar, described in section 84 as conduct so unreasonable no authority in that position could properly consider it reasonable, for a breach-of-statutory-duty claim specifically. The practical result is that a footpath or road claim against a Victorian council runs under a different, actual-knowledge-gated regime from a claim against a private occupier.

The Defences: Obvious Risk and Inherent Risk, With Real Limits

Wrongs Act Part X, inserted in 2003, sets Victoria's general negligence framework, applying to any damages claim for negligence regardless of whether it is brought in tort, contract, under statute or otherwise, subject to carve-outs for transport-accident, workers-compensation and several other statutory schemes. Section 48 sets the general duty-of-care test: a defendant is not negligent for failing to take precautions against a risk unless it was foreseeable, not insignificant, and a reasonable person would have taken those precautions. Section 53 defines an "obvious risk" as one that would have been obvious to a reasonable person in the injured person's position, which can include a risk of low probability, and is not automatically obvious merely because it arose from a failure to properly maintain something, unless that failure itself was obvious. Where an obvious-risk defence is raised, section 54 presumes the injured person was aware of the risk unless they prove otherwise, though that presumption does not apply to professional, health-service or work-risk claims. Section 55 provides that a defendant is not liable for harm from the materialisation of an "inherent risk," one that cannot be avoided by reasonable care, though this does not remove any duty to warn.

A full reading of Part X, Division 4 found no dangerous recreational activity defence and no risk-warning provision equivalent to those some other states give occupiers running events, adventure activities or recreational venues. Victoria's obvious-risk and inherent-risk provisions are narrower in that specific respect, and a defendant cannot rely on a Victorian equivalent of a dangerous-recreational-activity no-duty defence because none exists in the Act.

Intoxication and Illegal Activity: A Weaker Rule Than Some Other States

Voluntary intoxication and involvement in illegal activity appear twice in the Wrongs Act, and neither appearance creates an automatic bar or a fixed percentage reduction. Within Part IIA itself, section 14B(4) lists the entrant's intoxication and illegal activity as factors the court weighs when deciding whether the occupier's duty was discharged. Separately, Part IIB, sections 14F to 14H, governs ordinary negligence claims generally: section 14G requires a court, in deciding whether the defendant breached its duty, to consider among other things whether the injured person was voluntarily intoxicated and to what degree, and whether they were engaged in illegal activity. That is a mandatory factor going to breach, not a presumption of contributory negligence and not a fixed reduction, a materially weaker rule than the presumption-based or fixed-percentage intoxication provisions some other states apply to public liability claims.

What Compensation Covers: Two Separate Hurdles

Recovering non-economic loss damages, pain, suffering and loss of the amenities and enjoyment of life, in Victoria requires clearing two separate hurdles under two separate Parts of the Wrongs Act. First, Part VBA, sections 28LB onward, requires the injury to be a "significant injury." Section 28LB sets the threshold level: impairment of more than 5 percent for an injury other than psychiatric or spinal injury, 10 percent or more for a psychiatric injury, and 5 percent or more for a spinal injury. An approved medical practitioner assesses impairment under the AMA Guides and issues a certificate stating only whether the threshold is met, not the specific percentage, under section 28LN. A claimant and respondent can also agree by written waiver, under Division 4, to treat the injury as significant without a formal assessment.

Second, if the threshold is cleared, Part VB caps the dollar amount recoverable. Section 28G states the maximum is $577,050, but that is the base figure fixed in 2015 and is not the current cap. Section 28H requires the amount to be varied every financial year from a CPI-Melbourne formula, and its own note points readers to the indexed figure published annually by the Victorian Government. Section 28H indexes the cap annually, so the current maximum sits above that printed base; the current indexed figure was not verified for this article, and the currently published amount should be checked before relying on a number. A separate cap in section 28F limits economic-loss damages, past and future loss of earnings and earning capacity, to three times average weekly earnings at the date of the award, an uncapped-dollar mechanism distinct from the Part VB figure.

Contributory Negligence and Time Limits

Section 63 allows a court to reduce damages for the injured person's own contributory negligence by up to 100 percent, defeating the claim entirely, where the court considers that just and equitable, judged against the same reasonable-person standard as ordinary negligence under section 62. The general limitation period for a personal injury claim by a living plaintiff is three years from when the cause of action was reasonably discoverable, subject to a 12-year long-stop running from the act or omission, under the Limitation of Actions Act 1958, Part IIA, section 27D. A shorter, six-year discoverability period with the same 12-year long-stop applies to a minor or person under a disability, under section 27E.

What This Claim Is Not

A public liability claim is separate from a workplace injury claim, which runs through Victoria's WorkCover scheme; see Workers Compensation in Victoria. It is also separate from a motor-vehicle injury claim, which runs through Victoria's Transport Accident Commission scheme rather than the Wrongs Act's general negligence provisions; see Motor Accident Compensation in Victoria. Where the injury results in death, the claim becomes a wrongful death claim brought by the estate or dependants rather than the injured person; see Wrongful Death in Victoria. And an injury on common property in an apartment or unit building, a stairwell or a shared driveway, generally engages the owners corporation's own insurance and obligations rather than an individual lot owner's; see Strata Law in Australia for how those obligations work.