LWB147 Week 9 Lecture Notes
Damage – The Third Element of Negligence
The action of negligence has three elements:
Duty – Does A owe B a Duty of Care? (Question of Law)
Breach – Has A breached the legally determined standard of care? (Question of Law and Fact)
Damage is the third element which we will be talking about today.
Comparison with Trespass
Trespass is actionable per se.
In negligence, there must be damage in order to be actionable.
This damage must be proved and linked by causation to the defendant.
If the plaintiff cannot prove that the defendant is at fault then the plaintiff’s action will fail. Howell v Nominal
Defendant (1962) 108 CLR 552.
Consider… Who Killed Kenny?
Kenny is injured when he is hit by a New Years Eve rocket. At the time, many people were firing rockets in
the area, including Kyle.
Would Kenny be able to bring an action in negligence against Kyle?
The answer is no, because Kenny could not prove the Kyle caused the damage.
The Damage Element
1. Loss/damage suffered by the plaintiff must be a kind that is recognised by law.
2. Loss/damage to the plaintiff must have been caused by the defendant’s breach of duty (Factual Causation).
3. Loss/damage must not be too remote a consequence of the defendant’s breach (Scope of Liability).
1. Recognised as Law
This means it is a question of law.
Examples of recognised damage include:
Personal (physical) injury.
Damage to property.
Economic loss (pure or consequential).
Psychiatric injury (nervous shock) – a medically recognised psychiatric illness.
Loss of chance/opportunity has also been recognised in some pure economic loss claims e.g. a solicitor’s
failure to institute legal proceedings within the time period, Bennett v Minister for Community Welfare.
Compare with physical injury/medical negligence e.g. lost chance of a better medical outcome, Chappel v
Hart (argument rejected by High Court).
Chappel v Hart
The plaintiff needed a non-urgent operation on her throat.
The plaintiff lost her voice when an infection occurred.
The plaintiff had inquired about risks and the defendant had failed to advise the plaintiff of a slight risk of
infection as a result of the operation.
The loss suffered by the plaintiff was:
Not the loss of a chance of having the operation performed by more experienced surgeon who could
have minimised the risk.
Was the physical injury that occurred to her throat (being the risk the defendant should have warned
Rufo v Hosking (2004) 61 NSWLR 678
In a medical negligence case, the plaintiff may recover damages for the loss of a chance of a better medical
outcome. This case involved the recovery of damages after a doctors negligence resulted in plaintiff’s spinal injuries
which would either not have occurred or would have been less if not for the negligence (50% chance would
not have occurred or been as bad).
The recovery was subject to the lost chance being material, of substance and not remote or speculative (i.e.
less than 1% chance) and to the negligence being proved.
Tabet v Gett (2010) 240 CLR 537
It was concluded that the defendant doctor was negligent in failing to diagnose a brain tumour in the 6 year
The doctor had not ordered a timely CT scan and had therefore not taken appropriate steps to minimise the
plaintiff’s intracranial pressure by either administering steroids or inserting a drain.
Although it could not be established, on the balance of probabilities, if not for this failure/delay the brain
damage that followed would not have occurred. The trial judge concluded that the defendant had caused
the plaintiff to lose of 40% chance of a better outcome.
Considered t he common law of Australia should not recognise the loss of chance of a better outcome as
actionable damage in medical negligence cases.
Concluded that the damage suffered by the patient was the physical injury which occurred rather than lost
chance of avoiding it.
The leading judgment given by Kiefel J (Hayne and Bell JJ and Crennan J agreed):
“Expressing what is said to have been lost as the loss of a chance was said ... to divert attention from
the proper connection between fault and damage... in cases of the kind in question what is involved is
in truth not a loss of a chance. The factors present in that chance have played themselves out when
physical injury or death occurs. What is in issue is a past event” (at )
Damage Not Recognised
Damage too vague to assess
Calverley’s Case *1989+ AC 1228
Roberts v Roberts (1864) 122 ER 874
Damage associated with illegality
Meadows v Ferguson  VR 594
S v Superclinics (1995) Aust TR 81-360
General anxiety and vexation
Coates v GIO (1995) 36 NSWLR 1
Plaintiffs were 14 and 11 years old at the time of their father’s death in a motor vehicle accident.
Neither saw the accident nor were they present at the aftermath, were told of death by mother.
Both claimed psychiatric injury.
Majority held that this could not be established:
“Although the grief in both cases appeared intense at times and of relatively long duration I do not
think it can be stated that the trial judge was wrong to conclude that the appellants had not
established the existence of the injury necessary to sustain their claims” (Clarke JA at 21)
2. Factual Causation
The plaintiff must prove that their damage was caused by the defendant’s wrongful act or omission.
This is a question of fact.
There are two issues:
Standard of proof
Tests for factual causation 2.1 Standard of Proof
The plaintiff must establish factual causation on the balance of probabilities.
There must be a more than 50% chance that the defendant’s breach caused the plaintiff’s damage.
If causation is established on a 60% basis then the plaintiff is compensated 100%.
If causation is established on a 40% basis then the plaintiff receives zero compensation.
Hotson v EBA Health Authority  AC 750
The hospital failed to diagnose or correct a child’s hip injury for 5 days.
The long term disability was 75% likely to occur regardless of the treatment.
The defendant’s failure to diagnose meant that there was now a 100% likelihood of disability.
The hospital admitted there was a delay and that this was a breach.
The House of Lords held that the plaintiff failed to prove that the defendant increased the risk of injury by
50% or more. The injury was held to have occurred as a result of a fall and not the hospital’s negligence.
Section 12 of the Civil Liability Act
Onus of Proof
“In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of
probabilities, any fact relevant to the issue of causation.”
Supports this standard of proof.
2.2 Tests for Factual Causation
This is a question of fact, but the test applied is a legal test.
Now: Civil Liability Act 2003 (Qld) s 11:
The Act applies to breaches on or after 2 December 2002
Generally has not changed the common law
Ruddock v Taylor
Finch v Rogers
So remember in an exam:
You start with section 11 (not the common law) then use case law to interpret the section.
Section 11 of the Civil Liability Act
11 General principles
(1) A decision that a breach of duty caused particular harm comprises the following elements—
(a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation); …
(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty —
being a breach of duty that is established but which can not be established as satisfying subsection (1)(a) —
should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things)
whether or not and why responsibility for the harm should be imposed on the party in breach.
Necessary Condition of the Occurrence of the Harm: s 11 (1)(a)
Restatement of the “but for” test.
Would the plaintiff have suffered the harm ‘but for’ the defendant’s breach?
The defendant’s act or omission caused the plaintiff’s damage if the damage would not have occurred but
for the defendant’s act or omission.
A necessary condition is therefore ‘a condition that must be present for the occurrence of the harm’ Strong v
Woolworths Limited (at ).
Where there is only potential cause of the plaintiff’s loss the ‘but for’ test can be easily applied to determine
whether causation is established under s 11 (1)(a). Strong v Woolworths Limited  HCA 5
The appellant’s crutch slipped on a greasy chip on the floor of the sales area outside Big W at 12.30pm.
The area was under the care and control of Woolworth’s Limited.
The shopping centre had a contract with a cleaning company which required the inspection of floors every
15 – 20min.
Did the absence of a similar cleaning system on Woolworth’s part cause the plaintiff’s injury?
This required consideration of the probably course of ev