Negligence requires damage p has to show damage and

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Negligence requires damage: P has to show damage and that the damage was caused by the breach. Need a causal link. Not enough for the d to breach their doc, it actually has to hurt the p. D’s negligence doesn’t have to be the only cause. Can have more than one cause for an injury: Grant’s Case (Grant v Sun Shipping) : P worked on ships, was on this particular ship and fell through the hatch on the deck that had been left open. The hatch had been left open by a repairer who had been on the ship earlier. The ship owner should’ve checked it was shut but hadn’t done so. Who caused the injuries? The court held: both. The repairer and the ship owner were both negligent. Independent acts by 2 people that directly contributed to the injury and the p can sue both of them or one of them. Can have multiple causes. To be a cause in negligence law the d’s breach has to either be the cause or materially contribute to the injury on the balance of probabilities. This requirement that the p prove causation is reflected in s52: The p must prove causation. Recent Legislative Changes- Wrongs Act 1958 (Vic) s 51(1)(a), (2) & (3) 2 Main Issues Re Causation: o Causation in fact: was the defendant’s conduct at least one of the factual causes of the plaintiff’s harm/loss? o Causation in law: then need to consider whether the defendant will be held liable at law Intervening Act: We will then need to consider whether the defendant’s conduct was superseded by a later event that is more fairly treated as the responsible cause ? (i.e. was there a Novus actus interveniens ?) How do you decide causation in fact? How do you decide that what the d did wrong was one of the factual causes of the harm to the p? o Nagle’s case (Nagle v Rottnest Island Authority (199 3 ) : P worked on Rottnest Island (WA), went swimming one lunchtime at a swimming hole, he worked there so knew what the place was like. When you went to the hole you could see rocks sticking out of the water, partially submerged out of the water. Should not dive in (can see rocks) but there were no signs around. P dived in and hit his head on a rock. Sued auth for not putting a sign up: do not dive. Did the authority’s failure to put a sign up cause his injury? NO. shouldve had a sign saying: rocks? NO, could see rocks. Wouldn’t have made a difference. Did their stuff up materially contribute to his injury? No, he would have done it anyway. Use the ‘But for’ test. Tests causation in fact . Common law tests used in causation:- (a) ‘But for’ test- not the exclusive test ( March v Stramare ; Bennett ) (Causation in fact) o Did the defendant’s negligence in fact cause the plaintiff’s injury? Would the plaintiff’s injury have been suffered at all but for the defendant’s negligence? (Comparison with a hypothetical). Is this a purely factual question or are policy questions relevant?
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