Wrongs Act 1958

The Act has broad application. Claimants include any person (natural or corporate) who suffers death, personal injury, psychiatric injury, property damage or economic loss caused by the fault of another. Dependants defined in s 17(2) and s 23A(3) may claim for wrongful death. Prisoners and their representatives are subject to special restrictions under Part VBAA. Organisations that exercise care, supervision or authority over children—schools, churches, sporting clubs, charities, government departments, Victoria Police—are directly subject to the non-delegable duty in s 91 and the vicarious liability in s 93C.

Defendants include individuals, corporations, occupiers, employers, public authorities, and “relevant organisations” under s 88. The Crown is bound (ss 14C, 24AC). Volunteers, good samaritans and food donors receive statutory immunity provided they act in good faith and within statutory conditions (Parts VIA, VIB, IX). Medical practitioners and other professionals are subject to the peer-professional-opinion defence in s 59. Concurrent wrongdoers in apportionable claims have their liability capped at their proportionate share (s 24AI).

Courts, VCAT, Medical Panels, approved medical practitioners and the Convenor of Medical Panels all exercise statutory functions under the Act. Insurers are indirectly affected through the operation of damages caps, structured settlement powers and proportionate liability. The State is the ultimate defendant for public-sector bodies that cannot be sued in their own name (ss 91(5), 93D).

The Act creates or modifies numerous duties. The occupier’s duty under s 14B(3) is to “take such care as in all the circumstances of the case is reasonable” to avoid injury or damage from the state of the premises. Section 48(1) restates the general negligence duty: a person is not negligent unless the risk was foreseeable, not insignificant, and a reasonable person would have taken precautions. Causation is bifurcated into factual causation and scope of liability (s 51). Public authorities benefit from the resource and policy considerations in s 83.

Organisations owe a non-delegable duty under s 91(2) to take reasonable care to prevent child abuse by associated individuals. Once abuse by an associated individual is proven, breach is presumed unless the organisation proves it took reasonable precautions (s 91(3)). Institutions are vicariously liable under s 93C where the role supplied the occasion for the abuse.

Rights include the dependants’ action under s 16, the right to contribution under s 23B, and the right to proportionate liability under s 24AI. Claimants have a right to have non-economic loss assessed only if the injury meets the significant-injury threshold (s 28LE). Volunteers have a right to immunity (s 37(1)), subject to the exceptions in s 38. Good samaritans and food donors enjoy analogous protections.

Defences expressly preserved or created include voluntary assumption of obvious risk (s 54), materialisation of inherent risk (s 55), and the peer-professional-opinion defence (s 59). Contributory negligence remains a partial defence that can, in extreme cases, extinguish the claim (s 63).

The Act is primarily civil. However, Part I creates summary offences: publishing a defamatory libel (s 10(3)), and failing to identify a publisher (s 13C(4)), each carrying a maximum of 120 penalty units. The Act does not itself prescribe custodial penalties for civil wrongs; enforcement occurs through court-awarded damages, declaratory relief, injunctions and costs orders.

Medical Panels’ determinations are final on the threshold question (s 28LZH) and are enforceable through court stay powers (s 28LZMA). Failure to comply with procedural obligations (e.g. providing documents to a Medical Panel) can result in deemed acceptance of an impairment assessment (s 28LZA(4)). Costs of Medical Panel referrals are borne by the respondent (s 28LX). Contravention of publisher identification requirements attracts a penalty notice or prosecution.

The Act is not a code. Section 47 expressly preserves the common law except where Part X provides otherwise. Section 71 does the same for mental harm. Section 82 preserves the common law except for the public-authority principles in ss 83–85.

It intersects heavily with the Limitation of Actions Act 1958 (suspension under s 28LV, extension under s 20). The Workplace Injury Rehabilitation and Compensation Act 2013 and Accident Compensation Act 1985 largely exclude workers’ claims from the damages regimes (ss 28C(2), 24AG(2), 28LC(2), 45(1), 69(1)). The Transport Accident Act 1986 similarly carves out transport accidents.

The Legal Identity of Defendants (Organisational Child Abuse) Act 2018 interacts with Parts XIII and XIIIA by permitting certain NGOs to be sued despite lacking legal personality. The Australian Consumer Law (Victoria) is expressly brought within proportionate liability (s 24AF(1)(b)). Section 85 of the Constitution Act 1975 is varied in multiple places to limit Supreme Court jurisdiction (e.g. ss 23AB, 24AQ, 27, 28J, 28LZO, 65, 77, 86).

Transitional provisions frequently preserve accrued rights or apply new rules to proceedings commenced after particular dates (e.g. ss 24ADA, 28AAB, 28LZR–28LZT).

The most significant recent amendments are the insertion of Part XIIIA by the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Act 2026 and the refinements to child-abuse liability in the Wrongs Amendment (Organisational Child Abuse) Act 2017. Part XIIIA was enacted to overcome perceived common-law limitations on vicarious liability for non-employee perpetrators and to implement recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse. It creates a statutory form of vicarious liability where the institution’s placement of the wrongdoer supplies the occasion for the abuse (s 93C(1)).

The 2017 Part XIII was a direct response to the same Royal Commission, reversing the onus of proof once abuse by an associated individual is established (s 91(3)). The 2023 Justice Legislation Amendment Act validated VCAT decisions on contribution and contributory negligence that had been challenged on jurisdictional grounds (ss 24ADA, 28AAB).

Earlier reforms—the 2003 Ipp package (Parts X, XI, XII), the 2015 threshold adjustments, and the 2015 prisoner-related restrictions—were driven by insurance affordability, public-liability crises, and concerns about windfall damages. Each amendment was accompanied by transitional provisions to manage retrospectivity while preserving vested rights.

The Medical Panel regime in Part VBA has generated repeated litigation concerning procedural fairness, the validity of certificates, and the limits of judicial review. In Mulligan v Victorian WorkCover Authority the Court of Appeal confirmed that a Panel’s opinion on threshold level is not amenable to merits review but remains susceptible to jurisdictional error. The conclusive-effect provision (s 28LZH) has been upheld, but challenges persist where a Panel is alleged to have asked itself the wrong question or failed to give adequate reasons.

Proportionate liability under Part IVAA has produced controversy over the definition of “apportionable claim” and the exclusion of personal-injury claims. Courts have strictly confined the Part to claims for economic loss or property damage arising from a failure to take reasonable care, rejecting attempts to apportion liability in pure personal-injury matters.

The child-abuse provisions in Part XIII have been tested on the breadth of “associated with” (s 90). Early decisions have confirmed that the presumption of breach is rebuttable only by proof of reasonable precautions taken in advance, not merely after the event. The statutory vicarious liability in Part XIIIA is too new for reported appellate authority, but academic commentary predicts litigation over the “akin to employee” test and the precise meaning of “supplies the occasion”.

Public-authority litigation under Part XII has focused on the resource and policy considerations in s 83. In Department of Health v Ellis the Court of Appeal emphasised that s 83 is mandatory and must be weighed in every case, but does not confer absolute immunity.

Controversy also surrounds the “significant injury” threshold. Plaintiffs’ lawyers argue that the 5%/10% thresholds are arbitrary and exclude meritorious claims; defendants contend they successfully curb minor claims. The use of the AMA Guides (fourth edition) as modified has produced disputes over psychiatric impairment assessment and the exclusion of secondary psychiatric injury (s 28LJ).

Most practitioners underestimate the procedural rigidity of Part VBA. A claimant who serves a certificate of assessment but fails to serve the prescribed accompanying information under s 28LT(2) risks having the limitation period continue to run. Conversely, a respondent who requests further information under s 28LW(2)(c) but does not respond within 60 days after receiving it is deemed to accept the assessment (s 28LWA(3)).

The rebuttable presumption in s 91(3) is often misread. It is not enough for an organisation to show it had a child-safety policy; it must prove the policy constituted reasonable precautions in the circumstances that actually existed. Failure to implement the policy or to train staff can be fatal.

Section 93C(3) expressly excludes independent contractors from the “akin to employee” category. Institutions that engage contractors to perform roles involving close contact with children may therefore escape statutory vicarious liability, but may still be caught by the non-delegable duty in s 91 if the contractor is an “associated individual” under s 90(1)(c).

The prisoner damages restrictions in Part VBAA apply whenever the claimant, as an adult, has been convicted of an offence. A single historical conviction can trigger the mandatory minimum 90% reduction if the offence was profit-motivated. Courts have shown little sympathy for attempts to characterise old convictions as irrelevant.

Transitional provisions are a minefield. For example, the 2015 amendments to the non-economic loss cap apply to all proceedings not finally settled or determined before commencement, even if the writ was issued years earlier (s 28LACA(2)). Conversely, certain asbestos-related claims remain exempt from the significant-injury threshold (s 28LC(2)(e)).

The “normal fortitude” test in ss 72 and 74 is objective but fact-sensitive. Defendants who know the particular plaintiff is unusually vulnerable cannot rely on the normal-fortitude standard (s 72(3)). This creates a hidden duty to take extra care toward known psychiatric patients.

Finally, s 28LWD provides that a statement a respondent is a “proper respondent” is not an admission of liability. However, once a respondent has accepted an impairment certificate, it is difficult to resile from that acceptance in subsequent proceedings.

Organisations should conduct regular risk assessments of child-related activities and document the reasonable precautions taken. Policies must be more than paper exercises; they must be implemented, staff trained, and compliance audited. Insurance policies should be reviewed to ensure coverage for both direct liability under s 91 and any vicarious liability under s 93C.

Public authorities must record resource constraints and policy considerations at the time decisions are made; contemporaneous file notes are powerful evidence under s 83.

Professionals should ensure that any deviation from mainstream practice is supported by a respectable body of peer opinion that can be articulated at the time of treatment, not invented later (s 59(2)).

Claimants’ lawyers must obtain a certificate of assessment (or waiver agreement) before issuing proceedings for non-economic loss and serve it with the prescribed information. Failure to do so can lead to the proceeding being stayed (s 28LZMA).

All parties should be alert to the interaction between the Act and limitation statutes. Service of a certificate suspends the limitation period for three months after the last of several triggering events (s 28LV). Early advice on whether an injury meets the threshold can avoid wasted costs.

In multi-defendant litigation, careful consideration should be given to designating a respondents’ claim manager under s 28LU to streamline responses and avoid inconsistent positions that could bind co-defendants.

Finally, organisations that delegate care functions must ensure that the delegate is reputable and that the delegation contract preserves the delegator’s ability to monitor compliance; otherwise the non-delegable duty in s 91 will remain fully engaged.

Compliance is not a box-ticking exercise. Courts assess reasonableness prospectively, having regard to the resources available and the gravity of the risk. Contemporaneous documentation that demonstrates a proactive, evidence-based approach to risk management remains the single most effective shield against liability under this Act.