3. Damage

Question 1

In an action for negligence, without damages …

Answer 1

No cause of action can lie

Question 2

Actual damage or injury is an essential element of cause of action in negligence for personal injury. What is damage is a question of fact and degree, and a damage in negligence is the injury itself or its foreseeable consequence.

Answer 2

• (Alcan Gove PL v Zabic [2015] HCA 33)

Question 3

In a claim of negligence, inherent in principle, is the requirement that P is left worse off as a result of negligence complained about, established by the comparison of P’s damaged caused by negligent conduct, and P’s circumstances absent of negligent conduct.

Answer 3

(Harriton v Stephens (2006) 226 CLR 52) (Born a Wrongful Life Case)

Question 4

The birth of a healthy child, given the benefits of parenthood could be categorized as a form of damage.

Answer 4

• (Tabet v Gett (2010) 240 CLR 537) (Failed sterilization case.)

Question 5

TYPE OF INJURY

• P must identify type of injury before analyzing causation.
• Where to find CLA definitions of harm?

Answer 5

• CLA s5.
• “harm” means harm of any kind, including the following:
  
  • (a) personal injury or death,
  • (b) damage to property,
  • (c) economic loss.
• “negligence” means failure to exercise reasonable care and skill.
• “personal injury” includes:
  
  • (a) pre-natal injury, and
  • (b) impairment of a person’s physical or mental condition, and
  • (c) disease.