Negligence: Damage

Question 1

1. Is damage recognised at law?

Answer 1

Recognised
• Personal injuries, property damage, pure economic loss. Bennett v Minister for Community Welfare
• Nervous Shock and psychiatric illness Coates v SGIO
Not recognised
General anxiety, vexation or hurt feelings Coates v GIO
Damage too vague to assess Roberts v Roberts

Question 2

2. Factual Causation (Question of Fact)

Answer 2

• Breach of duty must have been a necessary condition of the occurrence of the harm. CLA s11(1)(a) Strong v Woolworths Ltd

Question 3

BUT FOR TEST:

Answer 3

Would the damage have occurred, but for the actions of the defendant
Strong v Woolworths Ltd

Question 4

Common sense and experience test

Answer 4

Person may be responsible if his or her damage is one of a number of conditions sufficient to produce that damage. March v Stramire

Question 5

Material contribution test

Answer 5

• On the balance of probabilities, was the defendant’s negligence a material contribution to the risk of damage occurring. s11(2) McGhee v National Coal Board s11 (3) also relevant

Question 6

3. Scope of Liability (Question of Law)

Answer 6

• Is it appropriate for the scope of the liability of the person in breach to extend to the harm so caused s11(1)(b) s11(4)
• A defendant is not liable for all the consequences of their acts or ommissions, only the ones that are reasonably forseeable. Wagon Mound No 1
• A real risk is one that would arise in the mind of a reasonable man and not be brushed aside as far fetched Wagon Mound No 2
• Only need to foresee injury of a general kind and not the exact type of injury and the precise manner in which it occurs. Mt Isa Mines v Pusey

Question 7

Egg Shell Skull Rule

Answer 7

• A defendant will be liable despite the fact the plaintiff has a pre-existing susceptibility which caused the plaintiff’s damage to be more severe. Smith v Leech Brain

Question 8

Legally Significant Clause

Answer 8

• Whether court is justified in imposing liability on defendant. Ruddock v Taylor
• For a policy reason, a person responsible for the damage should nevertheless not be held liable. State Rail Authority v Wiegold

Question 9

Novus Actus Intervenus

Answer 9

• An intervening act will break the chain of causation releasing the defendant from liability
MUST BE
• A voluntary act Haber v Walker
• Causually independent as to be deemed coincidental March v Stramire
• As a matter of common-sense and experience, they were not the relevant cause of damage. Bennett v Minister of Community Welfare
• When a Pl receives further injury due to the medical treatment of injuries caused by the Def, some degree of negligence in treatment is foreseeable and provided the Pl acts reasonably in seeking or accepting treatment, negligent treatment will only break the chain of causation if “inexcusably bad”. Mahoney v Kruschich

Question 10

Multiple Tortfeasors

Answer 10

Same damage
Joint Tortfeasors: Tortfeasors jointly responsible for tortious conduct which causes harm
Several Tortfeasors: Tortfeasors responsible for causing plaintiff’s damage, but conduct of each tortfeasor is separate from or independent of other tortfeasors March v Stramire
Different Damage
Successive tortfeasors: Tortfeasors whose independent acts caused different damage to one plaintiff.
• Generally where two (or more) separate acts of negligence combine to cause a Pl’s damage, each wrongdoer will be liable O’Shea v Sullivan