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Negligence
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Tort lecture on negligence
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Tort LectureWeek 4
NEGLIGENCE
➔ A successful claim in negligence requires:
◆ Duty of care
◆ Breach of that duty
◆ Causation (factual or legal)
➔ Each of these elements are necessary but in and of themselves are actually sufficient
➔ To have a valid claim in negligence, all four elements are necessary
➔ Need to work through each to see if a claim could be successful or show the point at which a claim might fail on one
specific ground
LEGAL CAUSATION/CAUSE IN LAW
➔ Look to establish the ‘real’, ‘effective’ or ‘operative’ cause - legal causation
➔ Legal causation is often referred to as remoteness
➔ To whom the responsibility for the harm is appropriately allocated? Tests are a value judgement
➔ About trying to limit the level of harm or the type of harm which is suffered by a claimant for which the defendant should
be liable
➔ Ultimately a legal control mechanism
➔ Even if a causal link has been already been established between the breach and the harm that has been suffered, there
are still situations in which the courts will try to limit and restrain the types of liability the defendant could incur
➔ Courts are trying to restrict the situations which are available for compensation
➔ Factual causation is just about trying to link together the breach and the injury that has been suffered. When it comes to
legal causation, we are trying to work out whether or not the breach should be a legal cause of the injury; a real or
operative cause.
➔ Two factors to take into account when it comes to determining whether or not a breach should stand as the legal cause of
the injury:
➔ Remoteness test
◆ Is the harm too remote a consequence of the defendant’s negligence? Judged at the time of the breach
➔ Intervening events
◆ Is there a subsequent event which breaks the chain of causation between the defendant’s negligence and the
harm/injury/damage suffered?
REMOTENESS
➔ What do we mean by remoteness? Or saying that the harm/damage/injury is too remote?
➔ The defendant will argue that the consequences of their actions are too remote
➔ Remoteness linked to foreseeability
➔ Were the consequences of the defendant’s negligent actions so far removed from it as to have been unforeseeable by the
df at the time of the negligence
➔ Whether a harm/injury/damage is too remote in the eyes of a ‘reasonable person’? Were the consequences of the df’s
actions not foreseeable (too remote)?
➔ Reasonable person standard
KEY TEST FOR REMOTENESS: THE MAGON MOUNDS (NO 1) [1961]
➔ Defendants responsible for unloading a ship in Sydney Harbour
➔ Negligence of crew member resulted in an oil leak into the water which formed a thin film over its surface
➔ Spread to the Cl’s wharf, where welders were working
➔ Sparks ignited the oil, causing damage to wharf and nearby ships
➔ First instance
◆ damage to the wharf due to oil itself was reasonably foreseeable
◆ damage due to oil igniting is not reasonably foreseeable
➔ PC agreed
◆ a reasonable person could not have foreseen the fire damage resulting from the negligent act
➔ PRINCIPLE: The defendant could not be held liable for the kind of damage which could not be reasonably foreseen
➔ When it has been established that this kind of damage is possible, the extent of the loss is irrelevant and the claimant will
be paid in full
➔ If it’s foreseeable that someone could be physically injured as a result of my negligent actions, then regardless of the
physical injury they suffer, they ought to be compensated
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