Venning v Chin
Venning v Chin (1974) 10 SASR 299 is a Supreme Court of South Australia Full Court judgement, by which it was decided that in trespass cases, the onus lies on the defendant to disprove fault. However, for injuries caused in highway accidents, the onus is on the plaintiff to prove fault on the part of the defendant (see Tort Law in Australia). Facts. A female pedestrian (the plaintiff and appellant) was struck down by a motor vehicle driven by Chin (the defendant) while crossing a public highway. As a result, the plaintiff suffered serious personal injuries. The  plaintiff then brought legal action, alleging that the defendant was negligent. The defendant denied the allegation and argued that the plaintiff was contributorily negligent in crossing the road without due care. The trial judge found contributory negligence on the part of the plaintiff for crossing the road without due regard for her own safety. For this reason, the judge could not positively find the defendant to be negligent. On the other hand, the trial judge was also unable to find that the defendant was "not guilty". In light of this, the plaintiff's claim would fail if it was brought  in negligence instead of trespass, where fault is an essential element. As the defendant was unable to prove the absence of fault on his part, the trial judge held that the plaintiff was entitled to recover damages for personal injury in trespass. In the trial decision, it was held that although the plaintiff had already succeeded in her claim for trespass, Section 27 of the "Wrong Act" 1936-1971 nevertheless applied for the apportionment. As the court held the plaintiff was held 60 percent of the blame for her own injury, damages were reduced accordingly. The plaintiff appealed and the  defendant cross-appealed on this decision. Issues. In the Supreme Court of South Australia, the following issues were discussed: Judgement. The Supreme Court found that the defendant was guilty of negligence in causing the plaintiff's injuries. Justices Bright and Jacob agreed with Chief Justice Bray's exposition of the rule on the issue of the onus of proof of fault in an action for damages for damage sustained in a highway accident, where the onus is on the plaintiff to prove fault on the part of the defendant. Ratio. The central issue in "Venning v Chin" was the relationship  between the torts of trespass to the person in highway accident and negligence. "Venning v Chin" is a classic example of a highway accident in which it was difficult for the plaintiff to prove negligence on the defendant's part. The court raised the question that if trespass is still available for injuries caused by negligence in a highway accident and held, that it was affirmed to be positive in Australia. It was found that there is an implicitly accepted risk that an accident would have occurred on a highway that was caused neither intentionally nor negligently. Examples of highway  accidents are collisions between vehicles, vehicle collisions with premises adjourning the highway, and collisions between a vehicle and a pedestrian on the highway. Previously in "Leame v Bray", the court held that trespass would lie for a highway accident caused by the direct action of the defendant in driving his carriage against the carriage of the plaintiff, even though that driving was negligent, not willfully. However, in "Letang v Cooper", Lord Denning MR held that if the injury was inflicted unintentionally, the plaintiff has no cause of action today in trespass but "his only cause of action is in negligence ." As both "Williams v Milotin" and "Letang v Cooper" can not stand together and that the court is bound by the High Court case of "William v Milolton", following "Williams v Hollands". The judge held that trespass was open to the case of "Venning v Chin". In "Weaver v Ward", it was held that the defendant was not liable in trespass if his act was neither intentional nor negligent. Therefore, the onus is on the defendant to disprove fault in trespass cases. However, BRAY CJ held that there can be varieties of this doctrine, where a general doctrine apply to  all cases and a particular doctrine apply to highway only. For injury caused by highway accident, the onus is on the plaintiff to prove fault on the part of the defendant because those who use the highway or have premises adjourning the highway must be taken to have implicitly accepted the risk of injury from contacts on the highway caused neither intentionally nor negligently. See also. "Wrong Act" 1936-1971. In the trial decision, it was held that although the plaintiff had already succeeded her trespass claim, section 27 of the "Wrong Act" 1936-1971 nevertheless applied for the apportionment . As the court held the plaintiff was 60 percent to blame for her own injury, damages were reduced accordingly.