Go back to common law and use but for test and common

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Go back to common law and use but for test and common sense application of policy / value judgments o (b) Scope of liability – ‘ Normative part’ of causation – seems to cover issues of Novus actus and remoteness – both of which do later together with 51(4) What else is relevant? – s 51(2) 51(2) applies only if negligence can’t be established using ‘established principles’ If on ‘but for’ test it seems the defendant’s breach is not a cause of the injury (refer to sub section 2) -> Court is then to consider the ‘ whether and why test’ in the subsection to see if it nevertheless should be a cause- whether or not and why d should be liable s51(2) to justify this. Eg where 51(2) applies: - multiple sufficient causes (2 people shoot at the same time, either one was sufficient to cases like Fairchild (multiple alternative causes- multiple ppl shoot at the same time, don’t know who did it) o Where under ‘but for’ test would seem no defendant caused injury BUT -> Section 51(2) does not apply where can establish defendant’s breach was a cause and then for common sense reasons decide they shouldn’t be liable. (When ‘but for’ test works) Eg Granville example – on but for test is liable but for common sense reasons (re only put in temporal and spatial position) is not – can’t use s 51(2) If 51(2) applies, then need to consider ‘whether and why’ test: i.e. whether and why responsibility should be left to lie where it falls This is probably just the common sense application of policy / value judgments but section doesn’t actually refer to common sense Nevertheless probably courts will interpret section in light of what already do but may be it gives them broader discretion? Torts Lecture Notes 24
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4. NOVUS ACTUS INTERVENIENS (NAI or NOVUS) – New intervening cause (Causation in Law) Novus is something that occurs after d’s negligence, it can occur b4 or after p’s injury but must occur after d’s neg. Not all events after d’s negligence is an NAI sometimes chain continues and sometimes the chain is broken. Just because multiple causes leading to the injury, doesn’t mean they are all causes. But can have multiple causes (sun shipping). Is the later event just another link in cause, or is the intervening act new, breaking the chain of causation. Series of event that need to occur before the final injury occurs. Can sue both ppl negligent for the injury. Chain of causation put together but not broke Recent Legislative Changes o Wrongs Act 1958 (Vic), s 51(1)(b) & (4) Wrongs Act 51. General principles (1) A determination that negligence caused particular harm comprises the following elements— (a) …; and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability) [Remoteness/Novus- don’t know which one its referring to] (4) For the purpose of determining the scope of liability, the court is to consider (amongst other
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