The harm p gets must be the one d is protecting p

Info icon This preview shows pages 23–25. Sign up to view the full content.

View Full Document Right Arrow Icon
court can draw the inference the breach caused the harm. The harm p gets must be the one d is protecting p against. Four things that are not required to use the approach ( Fairchild and McGhee ’s case together): 1. Don’t have to have more than 1 possible defendant (only 1 in McGhee) . 2. Don’t need to have evidence defendant was the sole possibility of the risk. 3. Doesn’t seem to be necessary, that all possible defendants are in court (can be 6 and only sue 4 – Fairchild - some of the employers were left out). 4. Not necessary that the defendant be an employer of the plaintiff, some of the plaintiffs in Fairchild were not employers but were in the building that the men worked in. (c) Take Plaintiff as You Find Them Performance Cars Ltd v Abraham [1962] 1. Common sense – apply value judgments and policy - March v Stramare , Chappel v Hart (causation in law) On grounds of ‘justice’, a ‘cause’ may be found to be or not to be a legal cause despite the ‘but for’ test result RESPONSE TO WARNINGS Where defendant’s negligence consists of failure to warn - plaintiff must show that they would have acted differently to avoid the harm if there had been a warning Test is subjective (ie what this plaintiff would have done) Eg compare plaintiff in Rogers v Whitaker with plaintiff in Chappel v Hart Now codified in s 51(3) Wrongs Act Torts Lecture Notes 23
Image of page 23

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
STATUTORY REFORM TO CAUSATION Wrongs act amended: Wrongs act 51. General principles (1) A determination that negligence caused particular harm comprises the following elements— (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); 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). (2) In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. S 51 is the provision re causation generally 2 parts of s 51(1): o (a) Factual causation (s 51(1)(a)) Need to show that defendant’s negligence was a necessary condition of harm but (subject to subs (2)) doesn’t say how to do that A NSW judge has noted that NSW equivalent to s 51(1) largely reflects the common law.
Image of page 24
Image of page 25
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern