TORTS LECTURE 7
DAMAGE
PARTICULAR DUTY AREAS
(a) Products Liability
(b) Defective Structures
(c) Nervous Shock
Damage in Negligence
Duty of care
Negligence
Breach
Damage
Damage in Negligence
Duty of care
Negligence
Breach
Damage
Damage in Negligence
• Damage is the gist of the action in Negligence
• The scope of actionable damage:
–
–
–
–
property
personal
mental
pure economic loss
• Damage must be actual for compensation; no cause
of action accrues until damage
• Limitations period therefore begin from the time of
the injurious consequences of a conduct not from
when the conduct first occurred
Damage in Negligence
• For P to be successful in an action in
Negligence, D’s breach of duty must cause
damage to P or his/her property
CAUSATION
Duty of Care
breach
causation
damage
= Negligence
There must be a causal link between D’s
breach of duty and damage to P or P’s property
CAUSATION: THE ELEMENTS
• Causation involves two fundamental
questions:
– the factual question whether D’s act in fact
caused P’s damage: causation-in-fact
– Whether, and to what extent D should be held
responsible for the consequences of his
conduct: legal causation
CAUSATION-IN-FACT
• Causation in fact relates to the factor(s) or
conditions which were causally relevant in
producing the consequences
• Whether a particular condition is sufficient to be
causally relevant depends on whether it was a
necessary condition for the occurrence of the
damage
• The necessary condition: causa sine qua non
CAUSATION
• To be successful in a claim for a remedy, P
needs to prove that the loss for which he/she
seeks compensation was caused in fact by
the D’s wrongful act
• Traditionally, the test whether D’s wrongful
act did in fact cause the loss is the ‘but for’
test
THE ‘BUT FOR’ TEST
• But for the D’s conduct, the injury to P would
not have happened:
– Waller v James (Wrongful life)
THE FUNCTION OF THE ‘BUT
FOR’ TEST
• Two functions:
– The primary (negative) function is to assist in
eliminating factors which made no difference
to the outcome
– The second (positive) function: it helps to
identify a condition or a factor which may itself
then be subject to a test of legal causation
THE ‘BUT FOR’ TEST IN THE
HIGH COURT
• Fitzgerald v Penn ( 1954) 91 CLR 268
– ‘Causation is all ultimately a matter of common sense….[It] is not
susceptible of reduction to a satisfactory formula’(per Dixon,
Fullagar and Kitto JJ)
• March v E& MH Stramare (1991) 171 CLR 506*The but for
test gives rise to a well known difficulty in cases where there are two
or more acts or events which would each be sufficient to bring about
the plaintiffs injury. The application of the tests gives the results,
contrary to common sense, that neither is a cause. The application of
the tests proves to be either inadequate or troublesome in various
situations in which there are multiple acts or events leading to the
plaintiff's injury (per Mason J)
THE ‘BUT FOR’ TEST: IMPLICATIONS
OF A COMMON SENSE APPROACH
• Bennett v Minister of Community Welfare (1992) 176 408
– ‘if the but for test is applied in a practical common sense
way, it enables the tribunal of fact, consciously or
unconsciously, to give effect to value judgments
concerning responsibility for the damage. If ..the test is
applied in that way, it gives the tribunal an unfettered
discretion to ignore a condition or relation which was in
fact a precondition of the occurrence of the damages’
THE ‘BUT FOR’ TEST IS NOT
EXHAUSTIVE
• Bennett: ‘ causation is essentially a question of
fact to be resolved as a matter of common sense.
In resolving that question, the ‘but for’ test ,
applied as a negative criterion of causation, has
an important role to play but it is not a
comprehensive and exhaustive test of causation;
value judgments and policy considerations
necessarily intrude (per Mason CJ , Deane and
Toohey JJ)
MULTIPLE CAUSES
• Where the injury or damage of which the
plaintiff complains is caused by D’s act
combined with some other act or event, D is
liable for the whole of the loss where it is
indivisible; where it is divisible, D is liable
for the proportion that is attributable to
him/her
MULTIPLE CAUSES: TYPES
• Concurrent sufficient causes
– where two or more independent events cause the damage/loss to D
( eg, two separate fires destroy P’s property)
• Successive sufficient causes
Baker v Willoughby
Faulkner v Keffalinos
Jobling v Associated Dairies Ltd (dormant spondylotic
myelopathy activated)
Malec v Hutton (possible future spinal condition)
– D2 is entitled to take P (the victim) as he finds him/her
– Where D2 exacerbates a pre-existing loss/injury (such as hasten
the death of P) D2 is liable only for the part of the damage that is
attributable to him
THE ELEMENTS OF
CAUSATION
Causation
Factual
(Causation in fact)
Legal
THE ELEMENTS OF
CAUSATION
Causation
Factual
(Causation in fact)
Legal
LEGAL CAUSATION
• Factual causation in itself is not necessarily
sufficient as a basis for D’s liability
• To be liable, D’s conduct must be the
proximate cause of P’s injury
• P’s harm must not be too remote from D’s
conduct
REMOTENESS
• The law cannot take account of everything
that follows a wrongful act; it regards some
matters as outside the scope of its selection.
In the varied wave of affairs, the law must
abstract some consequences as relevant, not
perhaps on grounds of pure logic but simply
for practical reasons Per Lord Wright
Liebosch Dredger v SS Edison [1933] AC
449
Case Law on Remoteness
• Earlier position in Common Law
– Re Polemis:- the ‘directness element’
• The current position:
– The Wagon Mound (No. 1)
– The Wagon Mound (No. 2)
INTERVENING ACT
• An intervening act breaks the chain of causation and may
relieve D of liability. To be sufficient to break the chain, it
must either be a:
– human action that is properly to be regarded as
voluntary or a causally independent event the
conjunction of which with the wrongful act in or
omission is by ordinary standards so extremely
unlikely as to be turned a coincidence ( Smith J
Haber v Walker [1963] VR 339
INTERVENING ACT
• A foreseeable ‘intervening act’ does not break the
chain of causation
– Chapman v Hearse
• Negligent medical treatment subsequent to negligent
injury would not necessarily remove liability for D1
unless the subsequent injury was ‘inexcusably bad’,
so obviously unnecessary or improper that it fell
outside the bounds of reputable medical practice
– (Mahony v J Kruschich Demolitions)
THE LAW OF TORTS
PARTICULAR DUTY AREAS
(a) Products Liability
(b) Defective Structures
(c) Nervous Shock
PRODUCT LIABILITY
• Common law:
- Donohue v Stevenson [1932] AC 562
- Grant v Australian Knitting Mills [1936]
AC 85
PRODUCT LIABILITY
• Relevant Statutes:
Sale of Goods Act 1923 (NSW)
Pt 4 Performance of the Contract (ss.30 to 40)
Pt 5 Rights of the Unpaid Seller Against the Goods
(ss.41 to 50)
Pt 6 Actions for Breach of the Contract (ss.51 to 56)
PRODUCT LIABILITY
• Relevant Statutes:
- Fair Trading Act (NSW)
Pt 4 Consumer Protection (ss.38 to 40)
Pt 5 Fair Trading (ss.41 to 60, including s.42
Misleading or deceptive conduct and s.44 False
representations)
PRODUCT LIABILITY
• Relevant Statutes:
- Trade Practices Act 1974 (Cth)
Pt V Div 1 Consumer Protection (ss.51AF to
65A, including s.52 Misleading and deceptive
conduct)
Pt V Div 2A Actions against manufacturers and
importers of goods (ss.74A to 74L)
Pt VA Liability of manufacturers and importers for
defective goods
DEFECTIVE STRUCTURES
• Professional negligence:
-
s.5O Civil Liability Act 2002 “Peer professional opinion” (ie. The UK
“Bolam” test)
S.5P Civil Liability Act 2002 “Duty to warn” remains
• Builders:
Bryan v Maloney (1995) ATR 81- 320
• Architects:
Voli v Inglewood Shire Council (1963) 110 CLR 74
DEFECTIVE STRUCTURES
• Councils & Statutory Authorities:
- Pt 5 Civil Liability Act 2002 - s.42 determining duty of care and
breach of duty in relation to functions, allocation of resources, range of
activities and reliance on general procedures/applicable standards; s.43 act or
omission not a breach unless unreasonable; s.44; s.45 Restoration of the nonfeasance protection for highway authorities
- Common law:
Heyman v Sutherland Shire Council (1985) 157 CLR 424
Shaddock v Parramatta CC [No.1] (1981) 150 CLR 424
Parramatta CC v Lutz (1988) 12 NSWLR 293
Brodie v Singleton Shire Council Council; Ghantous v Hawkesbury City
Council (2001) 206 CLR 512
NERVOUS SHOCK
• What is nervous shock
– An identifiable mental injury recognised in medical terms as a genuine
psychiatric illness.
– The sudden sensory perception that , by seeing hearing or touching – of a
person, thing or event, which is so distressing that the perception of the
phenomenon affronts or insults the plaintiff’s mind and causes a
recognizable psychiatric illness
– It is a question of fact whether it is reasonably foreseeable that the sudden
perception of that phenomenon might induce psychiatric.
• Pt 3 Civil Liability Act 2002 “Mental harm” (ss.27 to
33), especially:
– S.30 Limitation on recovery for pure mental harm arising from shock ie.
Witness at the scene the victim being killed, injured or put in peril, or the
plaintiff is a close family member of the victim
– S.32 Duty of care ie. Defendant ought to have foreseen that a person of
normal fortitude might… suffer a recognisable psychiatric illness if
reasonable care were not taken.
Nervous Shock:The The Nature
of the Harm
• The notion of psychiatric illness induced by
shock is a compound, not a simple, idea. Its
elements are, on the one hand, psychiatric
illness and, on the other, shock which
causes it. Liability in negligence for nervous
shock depends upon the reasonable
foreseeability of both elements and of the
causal relationship between them
• Post-Traumatic Stress Disorder
• Pathological grief disorder
THE VICTIMS
• Primary victims
– What needs to be reasonably foreseeable ? Some personal injury,
physical or psychiatric, to the primary victim
• Page v Smith [1996] 1 AC 155 (HL) a victim of a road accident caused by
another's negligence claimed damages solely for psychiatric illness
• Secondary Victims
– Close relationship
• Jaensch v Coffey
• S.30 Civil Liability Act “Close member of the family” and “spouse or
partner” defined
– proximity/nearness to accident or aftermath
• Bourhill v Young
• Mount Isa Mines v Pusey