Damage

Cases: Harvey v PD, Hirst v Nominal Defendant, Pledge v RTA & Ors, Ruddock v Taylor, Roads and Traffic Authority v Royal, Finch v Rogers, Bennett v Minister of Community Welfare, Chappel v Hart, March v E & MH Stramare Pty Ltd Legislation: * Civil Liability Act 2003 (Qld), ss 11-12, 28-33 and 73* Law Reform Act 1995 (Qld), ss 6-7 Introduction Plaintiff must establish that he or she suffered damage as a result of the defendants tortious conduct. Under the CLA Act the plaintiff must establish, on the balance of probabilities, that: y

the defendants breach of the duty of care was a necessary condition for the occurrence of the harm suffered by the plaintiff (factual causation): s 11(1)(a); and that it is appropriate that the defendant should be held legally accountable for the damage caused to the plaintiff by the breach of the duty of care (scope of liability): s 11(1)(b).

RECOGNISED KINDS OF DAMAGE Damage must be a kind recognised by law. Situations w here damage not recognised, benefits from criminal activity, expulsion from social club, fear of developing disease (e.g. asbestosis) the damage must have manifested. ONUS OF PROOF Section 12 provides that: 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. FACTUAL CAUSATION

Plaintiff must be able to show that the damage suffered was causally related to a defendants act of omission. But For Test At common law, s 11(1)(a)s requirement of factual causation is known as causation in fact and is commonly satisf ied by the but for test. Ruddock v Taylor,Harvey v PD, and Finch v Rogers
y y y

Would the plaintiff have suffered damage but for the defendants negligence? If the court finds that damage would have occurred regardless, damage not cause of defendant.

Pledge v Roads and Traffic Authority - value of test is that it shows the particular role a specific act or omission played in the occurrence of an event. Issues with the but for test: o Antecedent Cause - (previous, presumptive, history) the but for does not take into account. o Intervening cause (novus actus interveniens) secondary events that may effect damage suffered.

The Common Sense and Experience Test High Court held in the case of March v E & MH Stramare Pty Ltd, common lawcausation may also require a court to take into account th e ordinary notions of language, experience, common sense and to make poli cy and value judgments y March v Stramare development of more comprehensive test for factual causation. Drunk driver ran in to truck parked truck. y Person may be responsible for damag e when their conduct is wrongful. y M v S The common sense and experience test should be used in circumstances where results of the but for test need to be tempered by normative considerations. y Pledge v Roads and Traffic Authority considered causal factors and had to determine which was legally relevant or significant Legislative Necessary Condition Test (s 11 1 (a) 1. necessary condition of occurrence 2. appropriate scope of negligence action (with the legislation normative issues e.g. common sense test can only be used in regard to scope) Legislative Material Contribution Test There are exceptional cases where, although a duty of care has been established there is a lack of evidence as to directness of damage. Here s 11(2) provides that in these exceptional cases where s 11(1)(a) can not be satisfied, the court may in accordance with established principles consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach. Bonnington Castings v Wardlaw, Fairchild v Glenhaven Funeral Services This usually occurs in workplace and medical situations. The general test which is better to adopt is if the defendant has materially contributed to the risk of damage occurring. McGhee v National Coal Board Difficult to disentangle the causal factors on the balance of probabilities. (worker getting dermatitis no washing facilities) Court decided that in absence of complete medical knowledge there was not substantial difference between materially increasing the risk of injury and making a material contribution to the injury. S 11 (3) Enactment of theories in Chappel v Hart Section 11(3) provides that it is also relevant for the court to consider, in relation to factual causation, 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; and that: y the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b): s 11(3)(a); and y 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: s 11(3)(b).
SCOPE OF LIABILITY Section 11(1)(b) CLA provides that a decision that a breach of duty caused particular harm depends upon whether it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ( scope of liability). scope of liability requirement is also known as causation in law or remoteness aspect of the damage element. Aquestion of law for the judge.

The question that is asked here is: was the kind of damage suffered a reasonably foreseeable consequence of the defendant s actions or omissions? Reasonable Foreseeability y Remoteness the distance between a loss and the cause of that loss. To obtain compensation the loss must not be too remote from its cause. Whether the loss or damage suffered by the plaintiff is too remote depends on the knowledge possessed by or imputed to the defendant. In tort the test for remotene ss is reasonable foreseeability. y Common law authority for reasonable foreseeability/ test for remoteness is The Oropesa. Collision between two ships, son crossing in lifeboat drowned, found that decision of captain to was a novus actus interveniens. A new event or cause which disrupts/cha nge the course of events outside those foreseeable. y Not really a clear guidance in case history more of a case by case situation. y Egg-Shell Skull Rule defendant must take the plaintiff as found Smith v Leech Brain. Meaning is that the defendant will be liable despite preexisting susceptibility. The containment of the principle is that the damage must be of the same kind as that which was reasonably foreseeable. s 11(4) that normative considerations such as: y indeterminate liability (eg Harvey v PD) y the causative significance of the defendants conduct (eg Pledge v RTA) y The egg shell skull principle. Kavanagh v Akhtar, Robinson v Post Office y Whether the chain of causation was broken by the plaintiffs, the defendants, or a third partys actHirst v Nominal Defendant; Harvey v PD; March v E & MH Stramare Pty Ltd;Bennett v Minister of Community Welfare; Haber v Walker, Chapman v Hearse,Medlin v SGIC, Mahoney v Jury Kruschich (Demolition) Pty Ltd

Proportionate Liability Chapter 2 Part 2 of the Civil Liability Act 2003 (Qld) changes the law pertaining to the apportionment of liability in relation to apportionable claims, meaning those for economic loss or damage to property arising from either: y The breach of a duty to take reasonable care arising in tort, contract, under statute or otherwise; and/or y An action for damages for misleading or deceptive conduct under s 38 of the Fair Trading Act1989 (Qld), where there are several concurrent tortfeasors: see ss 28 and 30.

In brief, s 31 provides for a system of proportionate liability in that the liability of a defendant to proceedings is restricted to that portion of the plaintiffs loss for which the defendant is responsible. y A defendant is only responsible for the amount of damage considered by the court to be just and equitable having regard to the extent of the defendants responsibility for the harm Reinhold v New South Wales Lotteries Corporation y Should the court consider that liability is also attributable to a party that is not joined in the proceedings; the court may take this into account in apportioning damages. However proportionate liability will not apply to limit liability in relation to claims by consumers (see s 28(3)(b))or to a concurrent wrongdoer who: contravenes s 38 of the Fair Trading Act (Qld) (see s 32F); is fraudulent (see s 32D); or intends to cause the loss or damage suffered (see s 32E).