A tort law interferes with relations between private individuals to correct a wrongdoing. The plaintiff establishing casualties as a result of defendant’s actions or sometimes inactions, causation in tort law is demonstrated. For a defendant to be liable in negligence, their action or inaction must be the cause of the damage suffered by the plaintiff. It is self-evident that the claimant needs to show his harm follows from a logical and an unbroken consequence of actions. However, recent debates concern a defendant might be liable if he/she is a component of a number of casual factors leading to the circumstances that, in turn, cause damage.
The 'but for' test
This is ‘but for’ test that solves the problem of causation in tort law should simple cases come under concern. In other words, but for the defendant's actions, would the claimant have suffered the loss? It is taken for granted when the answer is positive, the defendant is not liable. Once negative, the defendant is liable.
The case of Adeels Palace Ltd v Moubarak (2009) may serve as a model of the ‘but for’ test. This case deals with two injured patrons assaulted on the occupier’s premises. A fight in a Western Sydney restaurant, AdeelsPalace, took place on New Year’s Eve. An assailant had been punched by Mr Moubarak, and afterwards shot a coming across visitor Mr Najem and the patron Mr Moubarak. The latter (the Plaintiffs) accused AdeelsPalace of the company’s negligence as their personal injuries cause. They insist that AdeelsPalace was ought to provide the necessary security measures during the function.
The Plaintiffs establishing liability against AdeelsPalace, the institution appealed to the High Court. In the High Court it was summarized that had it been the AdeelsPalace’s duty to prevent damage, the breach needs to be recognized as a possible cause of the suffering. The essence of the conflict lies in establishment’s potential owing a duty of care to patrons in order to prevent the criminal conduct.
The High Court minding Civil Liability Act (NSW) and the Liquor Act notes that Adeels Palace would be not negligent for failing to take abovementioned precautions unless certain probabilities of harm identified, recognizing restaurant’s reasonable responsibilities to take care of its patrons. The Council for the Plaintiff insists, on his turn, the security was obligate to intervene. However, the definition of the breach itself could not be determined clearly as no relevant sections of the Civil Liability Act (NSW) available. While considering the case, the High Court came to a conclusion that the core option to be studied was whether any failure to hire securities was causative of the harm to the patrons. The Plaintiffs injuries being a criminal action of a third party, according to a persuasive majority, appeal was allowed with costs.
When treating the mode, the Plaintiff must establish that the Defendant’s act or omission bears a violation and that the breach is causative of the harm. In this case, a causation succeed because the High Court found that security guards would not have prevented an armed from entering the AdeelsPalace. It is insufficient for the Plaintiff to simply assert that the Defendant should have taken further steps that may have minimised the risk of the injury occurring.
Wrongs Act 1958
It was stated in the Legislation Section 51, a negligence leading to a particular conduct must meet the following requirements: ‘(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)’. The ‘but for’ principle is applied to factual causation, and when determining what the injured person would have done if the negligent person had not been negligent, all circumstances relating to the case need to be taken into account individually. It is important to consider relevant causes why responsibility for the injury is be loaded on the negligent party. Scope of liability determination also is under impact of the ‘but for’ method, as Section 52 states – ‘In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation’.
It is rather difficult, if possible, to determine the cause and effect feedback, for example when two or more competing causes are to be dealt with. In case of Bonnington Castings Ltd v Wardlaw (1956) the claimant insisted pneumoconiosis had developed by inhaling polluted with harmful particles air during the course of his employment at Bonnington Castings. While the disease is of no doubt to be the effect of dispersed silica, there were two possible sources of it: pneumatic hammer and swing grinders. Had Bonnington installed in extractor fan, the concentration of the particle would have been reduced, while some percentage of the dust in the air would remain untouched. Thus, there emerge two possible causes: the potentially preventive dust, and the unavoidable dust, that would remain regardless of probable breach. The demonstration of the balance of probabilities that the preventable dust might be the sole cause of the damage would remain on the claimant. This case shows that when dealing with a number of causes leading to the damage, attributing to potential or actual liability is complex.
As soon as it is proved that the defendant owes the plaintiff a duty of care and that duty breached, with subsequent suffering a foreseeable injury, the proof of the issue of causation is viability imposed onto the defendant. The Australian High Court in case of Rosenberg v Percival (2001) that it is the doctor’s duty to provide the sufficient information not just about common information about a malady and its management options, but also other potential risks. So, foreseeable risk eventuating harm results. The potential risk coming into the scope, basic changes in the traditional viewpoint about causation challenged, and liability for negligence is potentially expanded. The obvious controversy to the principle is that it applies regardless of whether there is an evidence-based ground, pushing off good requirements considering sound reasons to prove factual causation.
Negligence typically occurs when someone does not exercise the amount of care appropriate for careful person to use under certain circumstances, or acts the way that a reasonably careful person would not. It is usually required that a defendant owes a plaintiff some sort of duty. The latter being violated, the plaintiff suffers injury, that was foreseeable. Degree of negligence is of special attention, as some follow a mixture of comparative and contributory negligence. Thus, the defendant might be liable if the wrong of the defendant is only one of a part of a number of reasons to eventually lead to damage. This is a challenging component of tort law.
According to the abovementioned Legislation and as shown in referred cases, the matter should be defined subjectively after all relevant circumstances considered in an appropriate fashion. The Wrongs Act 1958 is very punctilious about determining all possible causalities and additional circumstances concerning negligence, stating however that both factual causation and scope of liability are mandatory. This is the Court’s scope to apply these principles into practice accurately. As seen from case of Adeels Palace Ltd v Moubarak (2009), additional measures of security, also beneficial in general, would have not prevented an assault under these particular conditions. The case of Bonnington Castings Ltd v Wardlaw (1956), in support to the previous does not find one of a number of causal factors to be decisive. At the same time, the case of Rosenberg v Percival (2001) states a foreseeable risk ‘may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumes’. The law in Victoria looks to be in support with strong causality evidence.
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