LAW 1507 Lecture Notes - Lecture 6: Res Ipsa Loquitur, Lord Advocate
30 Jun 2018
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CAUSATION AND REMOTENESS RELEVANT TO NEGLIGENCE
Assignments still being marked
Civil Liability Act necessary
No seminars next week
s31-32 general standard of care
Is there a causal link between the breach and the harm suffered
Connection determined if the plaintiff demonstrates that they would not have
suffered harm but for the negligence/actions of the defendant
If something inserts itself between the failure to meet standard of care and breaks
chain then the action will be deemed not to have caused the harm
If the injury was a coincidence it will deemed not to be negligent- listen to lecture
for clarification re ambulance incident
Question of fact by applying common sense
‘But for’ used to be the test for causation but now under legislation we have to
apply the new test
March v Stramare (1991) 171 CLR 506- A driver was at East end market, truck
unloading in the morning across six lanes. The driver of the car was speeding,
drunk and ran into the back of the truck and suffered injury. He said the truck
driver was parked illegally and therefore caused the incident. The court decided
‘legal causation is different to philosophical or scientific causations.’ At law a
person may be liable if their wrongful conduct is one of a number of conditions
sufficient to cause the harm. Causation is the mark of the damage and is a question
of fact. But For test applied. It’s either inadequate or can result in strange
situations. Applied here was a person hunting with two others. The two hunters
negligently fired the weapons and shoot the third hunter.
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A, B shoots C. C goes to court and says ‘hunter A shot him’ negligently. Yes duty
was owed, yes it was breached because they shouldn’t have pointed at him with the
safety off. Would they have been shot but for my negligence. If yes applying just
the but for test isn’t enough. The law says you cannot apply the but for test because
both A and B did it so you can’t just sue one.
Did the negligence result in the outcome. Ought liability extend that far?
Our problem paper actually happened more or less
March v Stramare (1991) 171 CLR 506- The negligent act must have caused the
injury
If you give a child a loaded gun and they drop it on your foot the question is not
should you have given the child the gun, it’s were they negligent in dropping it on
your foot
If the negligent act was unrelated to the harm suffered then the case can’t move
forward but if you ask ‘is the negligent act and failure to meet standard of care part
of the story of the harm suffered.’ If yes then you go to the ought question. If not
then it’s a negative criterion.
Process of determining causation-
Question of fact- would harm occurred but for the wrongful actions of defendant (s
34 (1) (G) Civil Liability Act
Civil Liability Act 1936 (S.A) Part 6 Negligence
When someone has been negligently exposed to a risk by multiple people reference
Fairchild v Glenhaven Funeral Services
Don’t put a footnote in the legislation that is drafted
Adeels Palace Pty Ltd v Moubarak 239 CLR 420- A party, knocking of one person
against another on a dance-floor and one person took offence and started a fight,
left but then came back and was allowed in and shot some people. Failed at
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Document Summary
No seminars next week s31-32 general standard of care. Is there a causal link between the breach and the harm suffered. Connection determined if the plaintiff demonstrates that they would not have suffered harm but for the negligence/actions of the defendant. If something inserts itself between the failure to meet standard of care and breaks chain then the action will be deemed not to have caused the harm. If the injury was a coincidence it will deemed not to be negligent- listen to lecture for clarification re ambulance incident. Question of fact by applying common sense. But for" used to be the test for causation but now under legislation we have to apply the new test. March v stramare (1991) 171 clr 506- a driver was at east end market, truck unloading in the morning across six lanes. The driver of the car was speeding, drunk and ran into the back of the truck and suffered injury.
