Month: July 2023



As personal injury lawyers providing advice to clients, we find that people are often surprised to hear that not only are they burdened with carrying the consequences of their injuries, but at law, they also carry the burden of proof in their claim for compensation for those injuries.

What does burden of proof mean?

What is meant by “the burden of proof” is essentially who has the task of proving a certain fact (the standard of proof against which a claim and evidence is measured before that fact is considered proven is dealt with next). The burden of proof in different issues and aspects in personal injuries claims can depend on the law surrounding a particular type of claim.

As a broad proposition, it is the case that the burden of proving that a particular injury, loss and damage has been suffered, and that the particular injury, loss and damage was caused by a Defendant (the person or entity against whom a claim is proposed to be brought against) will rest with the injured Plaintiff.

Therefore, if you are unfortunate enough to suffer personal injuries in an incident which may give rise to compensation, it is vitally important that you take steps to protect yourself early by preserving evidence. Our role will be to handle this for you and/or to advise you on how to do so.

To prove that a particular incident occurred, necessary evidence to preserve and obtain may include the following:

  • Photographs;
  • CCTV footage;
  • Witness details and accounts;
  • First responder notes and reports (such as from Police, paramedics, SES, CFA, and 000 call takers);
  • Physical items (vehicle and bicycle wrecks, pieces of vehicles or machinery such as debris, items of clothing or footwear, blood spatters, damaged safety gear and the like);
  • Contemporaneous records entered into medical notes (such as in hospitals and medical clinics).

As to the nature and extent of particular injuries and losses, we will obtain the following:

  • Medical notes from hospitals and your treating medical practitioners, including radiological scans;
  • Medical reports from your treating medical practitioners;
  • Medico-legal reports from independent medical examiners;
  • Financial materials such as income tax returns and payslips;
  • Statements from co-workers and family members.

Great care and attention needs to be given in the wording of requests for medical opinions.

There are some instances where the burden of proof may shift to a Defendant. For example, where a Defendant alleges that a Plaintiff was contributorily negligence as to the occurrence, nature and/or extent of their own damage, the Defendant will have the burden of proving such an allegation. Also, it is common for Defendants to allege that a Plaintiff has failed to mitigate their own loss (that is, take steps to rehabilitate, retrain etc) – they must produce evidence to satisfactorily establish that.

Do not think simply because you are the one who has had injury inflicted upon you due to no fault of your own that you can sit back and compensation will materialise – you must prove your entitlement.

To what standard must I prove my case?

In civil cases based on negligence dealing with personal injuries and compensation/damages, all issues must be established “on the balance of probabilities”. This does not require absolute scientific certainty, but rather requires proving something on a more probable than not basis.

We often get questions from clients who are concerned as to what it means for their case if officials such as Police, WorkSafe or other statutory bodies elect not to press charges and prosecute a person or entity for what has occurred. Whilst it can obviously be helpful for a subsequent civil claim if this occurs and a conviction is secured against a Defendant, this generally will not be fatal to a Plaintiff’s proposed claim. In fact, it is commonplace.

That is because with, for example, Police looking into investigating a certain type of wrong doing in a motor vehicle accident, they are required to consider whether they can make out a charge to the criminal standard, which is “beyond reasonable doubt”, measured against the specific elements of a defined crime. This is a higher and more difficult standard than the civil standard. Also, although the consequences of an accident are highly relevant for the Police, the focus is often more so on the actions (including intent or otherwise) of someone who caused the accident in terms of assessing culpability. Things are more nuanced from a civil negligence perspective, in that a simple failure by a Defendant (such as a positive action or inaction) can lead to catastrophic consequences for an injured Plaintiff; it is common in road accidents to see one driver only issued with a fine for failing to give-way while the outcome of the failure to give-way may be fatal injuries or severe and permanent disability to the injured Plaintiff who was on the wrong end of the Defendant’s action/inaction. The same can apply with workplace accidents or incidents in public or private places where not even a fine can be issued. Provided you can nonetheless discharge the burden of proof to the requisite standard of proof, very substantial damages (pain and suffering, economic loss and in some cases, medical expenses and care) will be achieved regardless of the position the authorities have taken.

Although the standard of proof in a civil claim for damages based on negligence is a lesser standard to which a prosecution must make out a charge in a criminal matter, this does not mean a lawyer acting for an injured Plaintiff can be lazy or take less care in going about proving a client’s case: we at Fortitude Legal do the opposite (noting the burden you carry) and we will always undertake a forensic analysis and approach to our clients’ claims to give you the best prospects of success.

I didn’t have my seat belt on.  Do I still have rights?

In writing this article, we want to make it clear that as personal injury lawyers we see the devastating impact of transport accidents every day.  Wearing a seatbelt is not only law but reduces the risk of injury or death in a transport accident.

In our work however, sometimes we meet people who have avoided seeking legal advice in this scenario, thinking they may be excluded from entitlements under the Transport Accident Scheme altogether.  This article is intended to provide information for people in those circumstances and to explain how their entitlements are impacted.  It is important that access to entitlements and medical treatment is understood, as the Victorian Transport Accident Scheme is there to assist those injured in transport accidents.


When a person is injured in a transport accident and not wearing a seatbelt, they are still entitled to compensation in accordance with the Transport Accident Act 1986 (Vic) including the following:

No Fault Entitlements

No Fault entitlements payable by the Transport Accident Commission (TAC) include:

  • Medical and Like Expenses
  • Income Benefits
  • Impairment Benefit

Common Law Rights

 Prior to being able to claim Common Law Damages, the injured person is required to first establish that their injuries meet the definition of serious injury.

In a claim for damages under the Transport Accident Act, Common Law damages are payable for pain and suffering and economic losses.  Medical and like expenses are not typically able to be claimed and are usually preserved following an award of common law damages.

A serious injury can be proven by establishing a permanent whole person impairment of 30% or more in accordance with the AMA Guides 4th Edition; or

Demonstrating a serious injury via the “narrative test”.  The narrative test defines serious injury as:

  • Serious long-term impairment or loss of a body function; or
  • Permanent serious disfigurement, such as scarring; or
  • Severe long-term mental or severe long-term behavioural disturbance or disorder; or
  • The loss of a foetus.

Initial application via the narrative test is made to the TAC.  Should the TAC deny the serious injury application, a court proceeding is able to be issued to request a County Court Judge to grant leave to the injured party to proceed with the claim.


 In order to successfully demonstrate negligence, the injured person would need to establish that the accident was due to the negligence of another party.  Negligence is established when a party other than the injured person has failed to take reasonable care for the safety of the injured person and that failure is a cause of the injured person’s injury.

Circumstances where negligence is typically established in a transport accident can include the failure of a driver to take reasonable care for the safety of others; the failure of a council or roads authorities to take reasonable care of roads, or road related areas; and the failure of animal owners to keep animals secure and off the roads.

For the purpose of this article we will referred to the negligent party as the Defendant.  Depending on the circumstances of the accident, the Defendant is usually insured by the Transport Accident Commission or in some cases, another insurer.

Where the failure to wear a seat belt becomes relevant is in the defence of a Common Law claim.  There are two possible arguments the Defendant may raise:

  • Voluntary assumption of risk (a complete defence); or
  • Contributory negligence (which may reduce a person’s entitlement to Common Law damages but not defeat it altogether).

 Voluntary Assumption of Risk

 The Common Law has a principle that a person who has voluntarily assumed the risk of the particular injury, will not be entitled to Common Law damages.

History shows however, that this is a particularly difficult defence to establish, and it is more likely that an entitlement to damages will remain.  Put more simply, it is unlikely that the failure to wear a seatbelt will result in a complete defence, but rather, a reduction in damages by reason of contributory negligence.

Contributory Negligence

 Contributory negligence is a live issue in transport accident claims when the injured person is unrestrained.  In order to establish contributory negligence against an injured person, the defendant  carries the onus of proving that:

  1. The injured person was unrestrained; and
  2. The injured person’s failure to be restrained amounted to a failure to take reasonable care for their own safety; and
  3. That the injured person’s failure to take reasonable care caused their injuries to be worse than what they would have been if they were restrained with a seatbelt.

At Fortitude Legal we have been involved in claims where the negligent party has not been able to establish one or all of the above points.

  1. Whether or not you were wearing a seatbelt is disputed.

Where the defendant asserts that the injured party was not wearing a seat belt but that is disputed, evidence could be relied upon including:

  • evidence of another traveler or a first responder that can say that the injured person’s seatbelt was in fact on;
  • photographs of the injured person showing bruising caused by the seatbelt.


  1. Whether the insured person’s failure to be restrained amounted to a failure to take reasonable care for their own safety.

Where a vehicle is fitted with a seatbelt and the injured person failed to wear it, it is likely that this element would be proven.

Please note however that there are exceptions.  For instance, circumstances where the vehicle that the passenger is travelling in is not required to be fitted with seatbelts including:

  • Some Buses
  • Trams
  • Classic vehicles that may not be required to be retrofitted

Further, a vehicle user may not be required to wear a seatbelt in circumstances where they have received medical certification that states that because of medical unfitness or physical disability, it is impractical, undesirable or inexpedient that the person wear a seatbelt.

In these circumstances, an argument about failing to take reasonable care for their own safety would be unlikely to succeed.

If a person does not have the ability to make reasonable decisions in the interests of their own safety, they will probably also not be impacted by a reduction for contributory negligence.  An example may be a young child/infant.

  1. That the injured person’s failure to take reasonable care caused their injuries to be worse than what they would have been if they were restrained with a seatbelt.

It is very clear that wearing a seatbelt is generally the best way to avoid serious injury in the event of a collision.   The defendant does however have to prove in case that a failure to do so was causative of more serious injuries.  Whilst it is often the case, there may be an exception where the failure to wear a seatbelt was not causative of greater injury.  Each case turns on its facts.

The law surrounding unrestrained motorists is not straight forward and there are many considerations in the Common Law when determining the impact of being unrestrained on an injured person’s entitlements.

If you have a query in relation to a TAC claim, please contact our expert Transport Accident Team for a no obligation chat on 1300 020 618.