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Cases where the defendants breach of duty causes harm

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cases where the defendant’s breach of duty causes harm to the plaintiff; and cases where the defendant’s breach of duty deprives the plaintiff of a chance to recover from an existing harm The Oropesa [1943] P 32 Haber v Walker [1963] VR 339 (CB 326) Mahoney v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 (CB 340) March v Stramare Pty Ltd (1991) 65 ALJR 335 (CB 331) 25
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Element 4 - REMOTENESS OF DAMAGE (a) Damage as gist of the tort Loss of a chance Need to distinguish between: cases where the defendant’s breach of duty causes harm to the plaintiff; and cases where the defendant’s breach of duty deprives the plaintiff of a chance to recover from an existing harm Can loss of a chance be damage? Chappel v Hart (1998) 195 CLR 232 (CB 344) (b) Remoteness Test: Reasonable Foreseeability of the Same Kind of Harm Wrongs Act 1958 (Vic) s 51(1)(b) & (4) The defendant is not liable for any consequences of her negligence which are too “remote”. This deals with cases where there is an unusual or unexpected harm, or unusual consequential harm. The test of remoteness: was it reasonably foreseeable that the kind of injury suffered by the plaintiff might result from the defendant’s negligence? Key Q: Is the D responsible for some or all of the loss of the P where the loss has taken on an unusual form. Tests of Foreseeability Duty stage: is it reasonably foreseeable that carelessness by D might harm P? Breach stage: is it reasonably foreseeable that D’s failure to take a specific precaution might harm P? Remoteness stage: is it reasonably foreseeable that D’s failure to take that precaution might cause harm of the kind actually sustained by P 10 ? The reason for the remoteness test is to limit the D’s liablilty for harm that is not foreseeable. 10 The Wagonmound No 1 (Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Pty Ltd) [1961] 1 AC 388 (CB 352) 26
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The Wagonmound No 1 (Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Pty Ltd) [1961] 1 AC 388 (CB 352) Facts: Fire in Sydney harbour. D’s ship being loaded with oil in Sydney, in the process of transfer they negligently allowed oil to slip into the harbour. Oil leaks into P’s wharf. It remains there for several days. The P then caries out welding operation on the wharf and the oil is set alight, the damage does significant damage. P knew about the oil and they got advice saying it was ok. The only reason the oil ignited was because the welding sparks hit cottonwool which acted as a wick thus causing the fire. DoC made out. BoD made out. Causation made out. PC held that D was not liable because the damage was too remote. It was RF that damage could be caused but not damage by fire, it took a huge coincidence for that to happen. Wagon mound test: Is the kind of damage RF?. (Finding of fact) (c) Meaning of ‘reasonable foreseeability’ The Wagonmound No 2 (Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd) [1967] 1 AC 617 (CB 358) Principle: The risk must be not far fetched or fanciful.
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