Tutorial Question: Causation, Remoteness and Scope of Liability

Duty: Reasonable Foreseeability of Plaintiff (effect the plaintiff, or the class of plaintiff) by
incremental approach (by analogy)
Breach: RF directed at the risk of the event. Whether or not the risk was reasonably
foreseeable.
Damage: Privy Council directs RF at the type of damage.

Duty of Care
Not a novel duty of care, hence must be established from the common law perspective.
Hannah owed a duty of care to John as the skipper of the boat to take reasonable care to
avoid injury to the passenger. It can be reasonably foreseen a person might be injured by
her act of driving her boat negligently. John, as a passenger of Hannah’s boat and reliant on
her stirring to take reasonable care, duty of care can be entrenched.
Breach of Duty
Question of fact. Albeit, the court needs to know how to approach such question from the
perspective of the common law as well as statutory provisions (CLA s5B-C)
1. What standard of care is imposed on defendant?
2. What would a reasonable person respond to that? Balance of factors

 Causation, Remoteness and Scope of Liability

This section of establishing the tort of negligence refers to the gist of this kind of tort:
DAMAGES
Damage-Issue of Causation (legal and factual)

In the case of negligence, the rules of causation of remoteness determine not merely the
extent of recoverable damage, but also whether the action succeeds at all. This class of tort
is actionable only if damage is proved and linked, by causation, to the fault of the
defendant. (Petrunic v Barnes)
When looking at damage one must consider:
1. Whether the damage is of that kind the law recognises
2. Whether the negligence of tortfeasor is the cause of the damage
3. Whether the damage caused is within the scope of liability
Two-part test of Damage
a. Factual Causation
Factual Issue: Causation at common law is referred to as factual causation.
Demonstrate whether the defendant or somebody else caused the damage.
Apply the ‘but for’ test to establish whether the breach of duty is the factual cause of the
damage. (Barnett v Chelsea and Kensington Hospital Management Committee) Here, the
issue for the court was factual causation. The court must vindicate whether or not it was the
defendant’s breach of duty that caused the injury of plaintiff. This outcome correlates to
CLA s11 (a) that the breach of duty was a necessary condition of the occurrence of the
harm.
However, the sole application of ‘but for’ test can raise contentious issues and lead to
unreasonable outcomes. It cannot be the conclusive test for determining the factual matrix
of negligence. The ‘but for’ test is inefficient in
 1. Distinguishing causes (contributing factor) from mere pre-conditions
2. When there is more than one tortfeasor (2 Hunter’s Case – US, March v Stramare)
3. In cases involving novus actus interveniens (Chapman v Hearse)

At the common law, March v Stramare is the leading authority in formulating a definitive
test for causation.
Mason CJ in March v Stramare – The ‘but for’ test fails on two accounts: cases which
involve multiple causes and cases in which there is an intervening act. In such cases, a value
judgement of COMMON SENSE and POLICY CONSIDERATION are required to supplement
the but for test. And act cannot be considered an intervening act if that act was also the
result of the original tortfeasor’s negligence. Novus actus interveniens refers to an event
which breaks the chain of causation and entails that the original tortfeasor is no longer held
liable for the plaintiff’s damages. This intervening act is only enacted if
1. It was a voluntary human act (either the plaintiff’s or third party) which is free,
deliberate and informed (i.e. an act that is not a result of or influenced by the
original tortfeasor’s negligence)
2. Extraordinary coincidental event
In such case, a value judgement of common sense is required to supplement the but for
test.

"As a matter of both logic and common sense, it makes no sense to regard the negligence of the
plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's
wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff
or a third party and that injury occurs in the ordinary course of things.”

There are many cases that discuss such issues however, the judgement of Chapman v
Hearse best exemplifies the present case. If the subsequent act is a reasonably foreseeable
consequence of the first act, such that would arise in the ordinary course of things, it would
not be considered an intervening act.
Harber v Walker held that if defendant’s wrongful conduct creates the very risk that causes
the injury, it is a cause of that damage.

In determining in an exceptional case, CLA s5D(2)) mandates the court to consider under
established principles whether or not and why responsibility for the harm should be
imposed on the negligent party. This confers upon the courts wider discretionary powers in
determining causation by giving the court leeway if conclusion is absurd as long as it reasons
its conclusion.

Concurrent liability
Both party may be liable for full extent of the harm of the plaintiff

Successive Causes
As discussed in Baker v Willoughby
If the actions of the original tortfeasor and the successive tortfeasor were concurrent causes
of the injury of plaintiff, the original defendant will continue to be liable for his/her share of
the damages, regardless of the fact that the harm would have happened anyway because of
the second event.  Eggshell-skull rule where the defendant must take the plaintiff as
found. It entails that the second tortfeasor would only be responsible for the damages his
acts caused (as how he found the plaintiff) and protects him from being liable for the pre-
existing injuries caused by the original tortfeasor. HOWEVER, the plaintiff will only be able
to recover if and only the original tortfeasor is liable. (Law reform miscellaneous provisions
act 1946 NSW s5(1)c)  original tortfeasor seek contribution from second tortfeasor
A similar case is Jobling v Associated Dairies Ltd. where the defendant’s negligence caused
Jobling a back injury that subsequently limited him to work. Later, the plaintiff developed a
back disease, that is unrelated to the injury, which made him completely incapacitated. The
court held that if the second act is a natural event, rather than that of a tortious conduct,
then the original tortfeasor will only be liable for the damages up to the second event 
discounting for vicissitudes

b. Legal Causation : Remoteness and Novus actus interveniens

Legal Issue: Is the loss suffered too far removed from defendant’s breach as to be
unforeseeable?
At common law:
Wagon Mound no 1. reinforces and instils the concept of reasonable foreseeability.
Remoteness limits the plaintiff’s ability to recover damages to only those which were
reasonably foreseeable consequences of the negligent act of the defendant.
A defendant will not be held liable for damages which are too remote (exceeds the scope of
liability), even if his/her negligence caused the harm.
In this case, the Privy Council found that the defendant was not liable as the damage to the
wharf was not the kind of damage that was reasonably foreseeable. Foreseeability is
derived at the remoteness stage.
(Wagon Mound no. 2 succeeded as each plaintiff may bring new evidence to court. #2 ship
company wasn’t part of the decision to continue welding and brought evidence that it was
reasonably foreseeable that the furnace oil will cause fire)
- It must be reasonably foreseeable with respect to balance of probability:  Balance
of foresee the risk, respond of a reasonable person, magnitude of risk, degree of
probability of this harm, expense difficulty to elevate such harm, conflicting
responsibility.

The precise form of harm must not be foreseeable, only the type of harm (Mt Isa Mines v
Pursey) and Hughes v Lord Advocate where the court concluded, that the damage is not
too remote if the kind of damage which results, is reasonably foreseeable. The extend and
magnitude of damage is irrelevant. The manner of its occurrence is also redundant.

Stephenson v Waite Tileman Ltd decided that the eggshell-skull rule still continues to apply
despite the Wagon Mound case, where the defendant must take the victim as you find
them. This entrenches a greater responsibility for the damage, if the victim was
extraordinarily fragile and thus suffered greater damage. The defendant is also held liable
for any subsequent injuries directly caused by the initial injury and even if the subsequent
injuries weren’t foreseeable.
An exception to the foresight rule includes the eggshell-skull Rule, where the defendant
takes the plaintiff as he/she is found.
The remoteness mechanism is enforced in both common law and statutory levels.
CLA s5D (1) (b) renders “scope of liability” as an element of negligence. This section gives
the judge a wider discretion than previously at common law in regard to remoteness.

Second defendant only liable for any subsequent injuries (additional incurring 50% of the
damage) directly caused by the initial injury owing to the fragility or state of the victim

CLA – s5D: provides a guide for the court how to go about causation. Does not establish
causation.
Determination on causation requires the court to determine factual causation that is
whether or not the damage claim by the plaintiff was caused by the defendant’s negligence.
Must ask whether the defendant’s act was a necessary condition of the harm.  If not, the
defendant’s negligence may be negative completely (but for test)
But for test must treated with caution:
1. What is a cause? Is it a mere pre-condition? (negligent causes)
2. Colloquially known as the TWO HUNTERS’ CASE  reverse the onus of proof
3. Intervening Act: whether or not the second event has broken the chain of
causation from the defendant’s act  very kind of thing likely to happen

Common law rule of Remoteness (Wagon Mound no 1.) : Was the type of damage
reasonably foreseeable?
Remoteness comes within scope of liability by the CLA.  as to why the defendant is liable
for this type of damage. There is no requirement on the law, and on the CLA, that the
defendant must reasonably foresee the extent of the damage; “Eggshell skull rule”. One
must take the victim as he/she is found. It operates so that the defendant is liable where the
damage is greater due to some complication during the process of damage.
Smith v Leech Brain – Burn lead to cancer. It was held that the defendant was liable not
only for the burn, but also for the cancer. Where duty is satisfied, plaintiff must only prove
that such harm (personal injury) was reasonably foreseeable.  Was the personal injury
foreseeable?
Mahony v Kruschich
LRMP (1936) S5(1) (c) – brought in contributing to people who are liable for same damage.
(Chapman v Hearse) One person liable to plaintiff can ask for contribution from any third
party who is liable for the same damage.
The question: Whether Kruschich could recover from Mahony the supplemental 20% loss
incurred due to “his negligent conduct”. Can only recover for contribution if the original
tortfeasor wasn’t liable for that 20%.  Is the original tortfeasor liable for the negligence of
the hospital who treats the damage the original tortfeasor has caused?
It was held, that the original tortfeasor is liable for minor negligence of the hospital as he
has exposed the plaintiff to such risks. Gross Negligence  too remote and is a novus
actus interveniens

Reasonable foreseeability is not the hindsight of negligence, however the determinate of

remoteness.

We assume that the plaintiff has established the defendant’s tortious act of negligence
 Now must consider the court’s distribution of damages - Actual Personal Injury

Plaintiff has to mitigate his/her damages.

Seek medical treatment properly
Tangible and intangible losses
Accident  Trial  Future
To some extent, evidentiary estimation on balance of probabilities. What was held before
the accident and after the accident.
1. FUTURE ECONOMIC LOSS of a plaintiff: Capitulative method
Skelton v Collins
Consider, future earning capacity from the date of the accident
Once and for all system at the day of trial – unless it’s fraud
Very reliant on expert evidence, i.e. medical evidence
Work out the lump sum at the trial to compensate whatever the plaintiff for the amount of
loss incurred for the period of time, where the net amount has not been established yet
until exhausted.
Cullin v Traffle – HC, find the lump sum the present value of which to give the amount of
loss to the plaintiff during the period of time assuming there is no change in life expectancy.
The lump sum must be too much, as it is assumed the plaintiff will invest that money (must
take interest rate into account)  that they have the freedom to use the money as they
like. Consider the factors that reduce the wealth of the plaintiff, such as inflation rate, tax
on interest and changes in prices on goods and wages.
Todorovic v Waller – What notional interest to take to calculate the lump sum, “the
discount rate”
pg. 520 – because of the importance of this we’ve come to an
evidence inflation possible future changes in prices is immiscible
cannot take into account tax, income
however, where there has been a loss the future loss of interest rate, this must be
compensated by 3% (lower than commercial interest rate to balance the plaintiff’s loss due
to such economical changes)
Now the CLA s14 sets a discount rate of 5%, which is more than what the high court
considered.
This means that the plaintiff will earn a 5% interest. Higher the interest rate, the lower the
lump sum will be. It builds in the fact that this lump sum will run out during the 20-year
period. CLA means to reduce liability and damages.
HC CASE: Family member provided nursing services to provide service to the victim
(Defendant).
As long as the services is necessary, the plaintiff can recover based on the market value of
the services.
The victim recovers his need for nursing services, he can recover the market value of such
services and her beneficence is seen as helping the victim not wrong doing (not how much
the family has lost).
CLA s15 (b) – limits the amount a person can recover from petuitive(?) care.

Expected suffering: Pre-trial suffering until the day the plaintiff is expected to die.
Consequential suffering as a result of the tortfeasor.
Coma is not considered as suffering
Life-time care considered as pain of suffering as the plaintiff is aware of his/her suffering
Loss of capacity to do things (e.g. enjoyment of going to work, recreational acitivies… loss of
freedom to live life as desired)
CLA S16 – … unless the non-economic loss is 15% of most extreme case
Defamation cases