Victorian Current Acts

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Plaintiff to prove unawareness of risk

    (1)     In any proceeding where, for the purpose of establishing that a person (the defendant ) has breached a duty of care owed to a person who suffered harm (the plaintiff ), the plaintiff alleges that the defendant has—

        (a)     failed to give a warning about a risk of harm to the plaintiff; or

        (b)     failed to give other information to the plaintiff—

the plaintiff bears the burden of proving, on the balance of probabilities, that the plaintiff was not aware of the risk or information.

    (2)     Subsection (1) does not apply to a proceeding on a claim for damages in respect of risks associated with work done by one person for another.

    (3)     Despite subsection (2), subsection (1) applies to a proceeding referred to in subsection (2) if the proceeding relates to the provision of or the failure to provide a health service.

    (4)     Without limiting section 47, the common law continues to apply, unaffected by subsection (1), to a proceeding referred to in subsection (2) to which subsection (1) does not apply.

    (5)     Nothing in this section is intended to alter any duty of care to give a warning of a risk of harm or other information.

Division 5—Negligence of professionals and persons professing particular skills

S. 57 inserted by No. 102/2003 s. 3.

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