At common law only foreseeable damage is recoverable

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Unformatted text preview: er at ¶4-130 ‘But for’ test can be used to establish ‘factual causation’ 39 (4) Remoteness 40 (4) Remoteness • The defendant is not always liable for all the damage caused by their breach of duty • Need connection between breach of duty and damage: Was the damage the cause of the breach? • At common law, only FORESEEABLE damage is recoverable Was the damage of such a kind that a reasonable person would have foreseen? • Damages cannot be too remote Cases: The Wagon Mound cases See Latimer at ¶4-140 41 42 Remoteness and Civil Liability Act 2002 (NSW) Proving Negligence • Burden of proof (onus) is on the person who suffered the damage • The Civil Liability Act 2002 (NSW) does not specifically mention the word “remoteness” • That person must establish that: he or she was owed a duty of care the duty was breached ( standard of care not reached) the breach caused the damage and the damage suffered was a foreseeable consequence of that breach • In that Act, the test for “remoteness” is referred to as the “Scope of Liability” (s 5D) See Latimer at ¶4-150 43 43 44 Defences to Negligence Contributory negligence • Contributory negligence is the failure by the plaintiff to take care for their own safety. • Contributory negligence • Voluntary assumption of risk • Vicarious liability • To be contributory the plaintiff’s negligence must help cause the damage. • Damages are apportioned. Case: Imbree v McNeilly See Latimer at ¶4-100 and ¶ 4-160 45 Contributory negligence 46 Voluntary assumption of risk Under the Civil Liability Act 2002 (NSW): • The same principles apply to determining contributory negligence as apply to determining negligence: s 5R(1) There is a duty to warn a person of the risk • Voluntary assumption of risk is a complete defence to negligence claim • Standard of care is that required of a reasonable person in the position of the plaintiff: s 5R(2) • Difficult to establish in areas other than sport because the defendant must prove the plaintiff had: a precise knowledge of the risk; a full and free understanding and appreciation of the particular risk; • Liability can be reduced by 100% thus defeating the claim for damages: s 5S and voluntarily accepted the risk See Latimer at ¶4-170 and ¶4-171 47 48 Voluntary assumption of risk Voluntary assumption of risk • Under the Civil Liability Act 2002 (NSW), no liability for : inherent risk (ie: something that cannot be avoided by reasonable care): s 5I harm suffered from obvious risks of dangerous recreational activities: s 5L Cases: • Recreational activities: Swain v Waverley Council See Latimer at ¶4-090 • Professional advice: Rogers v Whittaker See Latimer at ¶4-110 harm suffered during recreational activity where warning was given by the defendant: s 5M 49 49 50 Other exemptions under the Civil Liability Act 2002 (NSW) Reduced (limited) liability under the Civil Liability Act 2002 (NSW) • Professionals • Organised by a community organisation;or Damages: statutory caps (maximum amounts) on personal injury claims and thresholds (minimum requirements) • A volunteer does not incur any personal liability when acting in good faith in community work : Road authorities • • Volunteers: s 61 Expressions of regret • No liability for a person who, in good faith and without expectation of payment or reward, voluntarily assists a person who is apparently injured or at risk of being injured Criminal activities • • “Good Samaritans”: s 57 Use of drugs, including alcohol (where they have contributed to the injury) As an office holder of a community organisation See Latimer at ¶4-171 See Latimer at ¶4-095 51 Vicarious Liability 52 Vicarious Liability • Vicarious liability • Employer/employee • Secondary liability: one person is responsible for the wrongful act of another person because of the legal relationship between them, even if the first person is not at fault Employer is liable to third parties for acts of employees within the actual or apparent scope of employee’s authority • Types of relationships affected: Employee may be personally liable for actions outside the scope of their authority Employer/employee Principal/agent Partnerships See Latimer at ¶4-173 53 54 Next week • • • • • • Remedies in tort Damages Liability for economic loss Types of economic loss Negligent misstatement Standard of care for professionals Read: Latimer Ch 4, ¶4-175 to ¶4-291 55 55...
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