Tort Law - Negligence

Causation

A question to be asked in every instance is whether the harm alleged was actually caused by the act or omission of the defendant, or whether there was some extraneous factor involved, without which the harm would not have resulted. Extraneous factors can include another person’s action or omission, or some non-human cause. The classical test of causation was the “but for” test where it is asked “but for the defendant’s act, would the allegedly resultant damage have occurred?” This test works well in situations such as where a plaintiff has a pre-existing medical condition made worse by the defendant. But it has been shown inadequate in instances where two parties act concurrently to produce the risk. (Either two potential defendants or a plaintiff acting in contributory negligence). One such example is March v Stramare.[1] A truck was parked late early in the morning in the middle of a six lane road in front of a wholesale produce market. This was the most convenient position and was a normal practice. The plaintiff, driving drunk and at excessive speed, collided with the truck. The negligence was found to be shared between defendant and plaintiff, with the court arriving at percentages of blame. Thus the plaintiff’s award in damages was reduced proportionally to his proportion of blame.

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The Eggshell Skull Rule

The eggshell skull rule is commonly phased, ‘you take the plaintiff as you find them.’ The name is illustrative of when the rule comes into play. If the plaintiff is in an accident which would cause a minor injury to most people, and due to inherent weakness incurs a serious injury, they still deserve compensation for the injury they actually suffered.

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Rescuers

A person placing themselves in the way of danger to stop or prevent a dangerous situation, or rescue others who are in danger, might be said to be partly to blame of any injuries sustained. They could be said to have voluntarily assumed risk (see Defences, below), or to have introduced a novus actus interveniens (new intervening act - see causation, below) in the form of their own decision to act. However courts take the view that anyone placing themselves in danger specifically because of the result of the defendant’s negligence is not caught by these rules. In Haynes v Harwood[2]

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[1] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.

[2] Haynes v Harwood [1934] 2 KB 240.