Damage & Causation | Scope of liability Flashcards
s 5D(1)(b)
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No.1)) [1961] AC 388 Privy Council
The Wagon Mound (No 1)
The test for remoteness of damage is reasonable foreseeability of the kind of damage suffered by the plaintiff.
Overturned the “direct consequence” test in Polemis for the “foreseeability” test.
Plaintiffs are able to recover damages if the harm comes within a more general kind of damage that is foreseeable (even if thee particular injury is not foreseeable).
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No.2)) [1967] 1 AC 617 Privy Council
The Wagon Mound (No 2)
It was foreseeable. It would have been easy, inexpensive and in the best interests of everyone for the engineer to stop the leak.
Hughes v Lord Advocate [1963] AC 837
8 year old boy burnt in explosion from gas lamp.
The kind of damage needs to be foreseeable, not necessarily the way it occurs or the ‘exact shape of the disaster’.
‘Egg-shell skull rule’
Only the kind of damage need be reasonably foreseeable, not necessarily the extent of the damage
‘Take the victim as you find them’ including:
Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 –> As you find P in family context
Kavanagh v Akhtar (1998) 45 NSLWR 588 –> As you find P in cultural context
Stephenson v Waite Tileman [1973] 1 NZLR 152
‘Egg-shell skull rule’
Wire rope cut hand, caused chronic injury/symptoms.
‘…the eggshell skull rule remains part of our law notwithstanding the decision in Wagon Mound No 1’.
‘Take the victim as you find them’ – special susceptibility of P
Chappel v Hart (1998) 195 CLR
Fail to warn cases
Is it probable P would have acted on the warning? (in this case, of a risk of post throat surgery infection causing permanent loss of voice)
Was there another course of action P could have taken if warned?
Impact of s 5D(3) CLA – changes the way common law deals with evidence in fail to warn cases
