The majority of the hc held illegality was not a

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The majority of the HC held illegality was not a defense. Joint illegality had no effect on the SoC. Joint Illegal Activities: two relevant considerations – when applying Question 2. 1. The nature and gravity of the offence in question. 2. The closeness of the relationship between the illegal act and the defendant’s negligence Consideration 2 Italiano v Barbaro (1993) 114 ALR 21 (CB 542) Facts: P injured in a collision. D and person in other car where involved in a conspiracy to claim compensation. P claimed the accident was genuine and not part of plan. Court said even if they believed P’s claim, illegality would be a defense. Act of looking for a suitable place to stage the accident is intimately connected with the illegal activity. However driving home is not. 41
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Miscellaneous Issues *Illegality negates the DoC. It may seem like BoP is on P but actually it is on D. *Burden of Proof Gala v Preston If the P can show a DoC existed ‘but for’ the illegality then BoP is on D. *Wrongs Act 14G Relevant to BoD, courts have to consider whether the P was engaged in illegal activity when determining whether there is a breach. ( Completely different from the issue above) In cases where illegality is not a defence you still need to consider the illegal activity when determining breach. 42
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(d) Volunteers and Good Samaritans Wrongs Act 1958 (Vic) ss 31A, 31B, 34-40 Good Samaritans: Free to render assistance or care to an injured person. CL, reasonable person test applied. Legislation modified it to: Not liable for anything done in good faith. Volunteers: Volunteers defined as someone who does community work on a volunteer basis. Volunteers protected provided they act in good faith. Organization may be liable but not the volunteer. 43
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(e) Limitation of Actions Limitation of Actions Act 1958 (Vic) ss 5(1), 5(1A), 5(1AA), 23A and 27D s5(1) - A negligence action must be brought within 6 years of the cause of action accruing. s5(1AA) - Personal injury cases: the action must be brought within 3 years of the cause of action accruing s23(A) – Court has discretion to extend s5(1AA) to extend to 6. s27D – Maximum total limit of 12 years for all cases from the date of the act which caused the injury. When does a cause of action accrue? Cause of action ‘accrues’ from the time all elements are made out. This means until the damage is suffered cause of action does not accrue. In most cases the cause accrues immediately. In the case of diseases the cause may only accrue a substantial amount of time after the breach. EG: Diseases: Asbestos, P may only develop disease may year later. The cause then only accrues after disease develops. Limitation of Actions Act S5(1A) – Only diseases or disorders. - time does not accrue until knowledge of the disease is gained by P and; - the disease or disorder is caused by some other person. 44
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(f) Contribution & Indemnity between Tortfeasors CB chap 18 Wrongs Act 1958 (Vic) ss 23B, 24 and 24AI A defendant’s right of contribution is not actually a defense against the plaintiff’s claim, but rather a claim by a defendant against another co-defendant(s) aimed at apportioning part of the blame (and responsibility for damages) onto other defendants.
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