Remoteness of damage in paul v cooke 2013 85 nswlr

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plaintiffs. Remoteness of damage [In Paul v Cooke (2013) 85 NSWLR 167, the harm suffered by the plaintiff was found to be outside the scope of the defendant’s liability. The New South Wales Court of Appeal found that the absence of any relationship between the defendant radiologist’s negligent failure to diagnose an intracranial aneurysm and harm suffered by the plaintiff due to its rupture in surgery three years later made it inappropriate to impose liability] The test for determining whether the damage is too remote, and therefore not recoverable, is whether the damage was reasonably foreseeable by the defendant. A leading case on the issue is the decision of the Privy Council in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No 1) [1961] AC 388: [In Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No 1) [1961] AC 388, the defendant charterer of a ship negligently spilt a quantity of oil while it was being loaded. The oil floated on the surface of the water in Sydney Harbour. The oil was ignited by some molten metal falling from the plaintiffs ’ wharf, where welding operations were being carried out, onto cotton waste floating in the oil which acted as a wick. The ensuing fire extensively damaged the plaintiffs ’ wharf. The flashpoint of the oil was 170°F and would not normally have ignited on water. The Privy Council held that the defendant charterer was not liable to the plaintiffs for the damage caused to their wharf because the kind of damage resulting from the spillage of the oil was not reasonably foreseeable in the circumstances.] By way of contrast, in a later case relating to the same incident, the plaintiff owner of a ship which was damaged by the fire succeeded in an action against the negligent charterer where the shipowner proved that the charterer was aware that there was a real risk of fire damage as a result of the oil spill: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound No 2) [1967] AC 617 (PC). The difference in result between the two cases arose because in the first case the plaintiff wharf owners failed to prove that a reasonable man in the position of the defendant charterer would foresee the real risk of damage by fire as a result of the oil spill, whereas in the later case, the plaintiff shipowner did prove that the damage in question was reasonably foreseeable and therefore not too remote. 11 | P a g e
The damage suffered by the plaintiff must have been reasonably foreseeable, or of the same type or kind as the foreseeable damage. [ The plaintiff, at the defendant ’ s request, had allowed the defendant to drive her powerful car. The defendant drove negligently, struck a telegraph pole and suffered severe injuries which resulted in him becoming a quadriplegic. The plaintiff, who was a passenger in the car, incurred only minor physical injury. However, the plaintiff suffered mental illness brought on by her sense of guilt in allowing the defendant to drive her car. The New South Wales Court of Appeal, by a

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