LWB147 Week 10 Lecture Notes
Damage Part 2
What are we looking at today?
1. Damage recognised by law - DONE
2. Factual causation – FINISHED TODAY
3. Scope of liability – multiple tortfeasors – TODAY
2. Factual Causation
Section 11(3) Civil Liability Act
11 General principles
(3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the
person who was in breach of the duty had not been so in breach—
(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b);
(b) any statement made by the person after suffering the harm about what he or she would have done is
inadmissible except to the extent (if any) that the statement is against his or her interest.
Subjective test of causation
What would the plaintiff have done if the defendant had not been negligent?
Berry v Kanakis  NSWCA 68, 
Confirmed by s 11(3)(a)
Common Law allowed:
Subjective evidence – plaintiff’s direct testimony
Criticised: Chappel v Hart
Plaintiff’s direct testimony is inadmissible, unless against the plaintiff’s own interest
= Change from the Common Law
Livingstone v Mitchell  NSWSC 1477
3. Scope of Liability
Is the plaintiff’s damage too remote a consequence of the defendant’s breach?
This is a question of law.
Prior to CLA: referred to as ‘causation in law’ or ‘remoteness’.
Places a limit on the extent to which a defendant is deemed liable for the loss caused by their breach.
This is a matter of policy
Section 11 Civil Liability Act
11 General principles
(1) A decision that a breach of duty caused particular harm comprises the following elements—
(b) It is appropriate for the scope of the liability of the person in breach to extend to the harm so caused
(scope of liability).
(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether
or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.
Consideration of normative issues, including:
Whether the damage was reasonably foreseeable;
Whether the breach was a legally significant cause; and Whether (if there is more than one cause of a plaintiff’s harm) any of the other causes of harm amount to
intervening acts which will limit the defendant’s liability or release them from liability in relation to all or
part of the plaintiff’s damage.
3.1 Reasonably Foreseeable
A defendant is not liable for all the consequences of their wrongful acts or omissions, only those which are
Always to be considered in every case
Wagon Mound (No. 1)
The defendant’s employee allowed oil to spill from a ship and spread under plaintiff’s wharf.
Oil ignited when molten metal fell from plaintiff’s welding on wharf, damaging wharf and nearby ships.
Plaintiff’s action negligence action unsuccessful.
Damage considered being not reasonably foreseeable, as oil would not normally burn on water.
Wagon Mound (No. 2)
How foreseeable must the damage be?
A real risk is one which would occur in the mind of a reasonable man in the position of the defendant … and
which he would not brush aside as far fetched
 1 AC 617, 641-4
Foreseeability in Damage
It’s the foreseeability of the kind, category, class or character of damage.
Defendant need not foresee the manner in which it occurs, or its extent… just the kind.
Mt Isa Mines v Pusey (1970) 125 CLR 383
Plaintiff went to the aid of workmates injured in a work accident. After he carried one injured worker
to the ambulance, he later found out that the man had died from his injuries.
Plaintiff developed schizophrenia.
High Court held: although the development of schizophrenia was not a foreseeable consequence of
the defendant employer’s negligence, some kind of mental disorder was reasonably foreseeable.
Eggshell Skull Rule
Test of reasonable foreseeability is subject to the eggshell skull rule.
Under this rule, a tortfeasor must take their victim as they find them.
Once a breach of a defendant’s duty to a plaintiff is found because the type of injury suffered was
reasonably foreseeable, the defendant’s liability will extend to any aggravation of that injury due to some
inherent susceptibility of the plaintiff.
The defendant will also be liable for a new risk or susceptibility created by the plaintiff’s initial injury.
Mahoney v Kruschich (1985) 56 CLR 522
Ruddock v Taylor
Plaintiff claimed false imprisonment due to the wrongful cancellation of his visa.
Two questions in the determination of causation in tort:
The factual aspect of causation, the aspect concerned with whether the negligent conduct played a
part in bringing about the harm.
The appropriate scope of liability for the consequences of the tortious conduct … normative Ipp J at
As it is a ‘fundamental purpose of the common law to protect the personal liberty of individuals,’ the
appellants ought to be liable as ‘it would be unjust to hold otherwise.’
Chappel v Hart
Plaintiff needed non-urgent operation to her throat.
Plaintiff inquired about risks and defendant failed to advise plaintiff of slight risk of infection as a result of
operation. Risk could be minimised if operation done by more experienced surgeon - plaintiff would have requested
this if risk known.
Through no negligence, infection occurred and plaintiff’s voice was affected.
3:2 – defendant’s failure to advise of risk caused injury.
“But for” failure to warn would not have had operation.
No policy or commonsense grounds to reject this “but for” conclusion.
Pledge v RTA
Plaintiff (aged 9) hit by a car whilst standing on the side of the road.
Three possible causes of Pl’s injuries:
Failure of first defendant to drive whilst keeping a proper look out.
Failure by Council and RTA to maintain foliage which obscured view.
Style and location of parking bays built by RTA and the failure to erect warning signs.
High Court held that the danger posed by the bays was so slight it could be disregarded when considering
legal responsibility as on a commonsense basis they were not causative of the collision: at 60, 65.
“The questions that are relevant to legal responsibility are first, whether, as a matter of history, the
particular acts or omissions under consideration (here the acts or omissions which led to the presence of the
foliage, and the parking bays, and the absence of warning signs) did have a role in the happening of the
accident. It is necessary then to examine the role that is identified by reference to the purpose of the injury –
the attribution of legal responsibility. It is at this second level of inquiry that it may be necessary to ask
whether, for some policy reason, the person responsible for that circumstance should nevertheless be held
not liable” Per Hayne J at 59
A similar requirement is imposed by s 11(1)(a),(b)
3.2 Intervening Acts
If a new independent act either:
Intervenes after the defendant’s wrongful conduct but before the damage is sustained by the plaintiff;
Builds on the plaintiff’s injury caused by the defendant
It may be argued that the act breaks the chain of causation and releases the defendant from liability from
that point in time.
= Policy choice that no liability is to attach
For the chain to be broken, a number of characteristics may be present:
Causally independent act
Must not be an ongoing duty of care
Haber v Walker  VR 339
Plaintiff’s husband committed suicide as the result of depression caused by injuries sustained in a
motor vehicle accident caused by the defendant.
The suicide was not an intervening act.
Hirst v Nominal Defendant
Plaintiff was an on-duty police officer who was injured during the high-speed pursuit of an
Plaintiff’s voluntary decision to engage in, and continue, the pursuit was not an intervening act.
“voluntary or deliberate or unusual conduct on the part of a plaintiff does not necessarily sever the causal
nexus so as to relieve a negligent defendant from liability for loss suffered by a plaintiff; and that it is
necessary to have regard to the extent to which the plaintiff’s voluntary conduct has been constrained by the
defendant’s misconduct, and then to ask whether as between plaintiff and defendant it was reasonable of
the plaintiff to make the choice which was the immediate cause of the loss” Per Keane JA at 148 Causally Independent A