Survival Guide: Scoping out Scope of Liability

Survival Guide: Scoping out Scope of Liability

Prepared by Dr. Brandon D. Stewart

Introduction to Scope of Liability

  • The concept of scope of liability is the fourth element in the causation inquiry as mandated by the Wrongs Act.
  • The core provisions relevant to this element are found in subsections 51(1)(b) and 51(4) of the Wrongs Act.
    • 51(1): stipulates that a determination that negligence caused particular harm includes:
      • (b): It is appropriate for the scope of the negligent person's liability to extend to the harm caused (scope of liability).
    • 51(4): states that to determine the scope of liability, the court must consider relevant factors, specifically whether and why liability should be imposed on the negligent party.
  • Before addressing scope of liability (element #4), the court must first establish:
    1. The defendant owed the plaintiff a duty (element #1).
    2. The defendant breached that duty (element #2, section 48).
    3. The breach was a necessary condition for the occurrence of the plaintiff’s harm (section 51(1)(a)) or appropriate policy-based factual causation (section 51(2)) (element #3).
  • Only after establishing these elements can the court consider if the defendant should escape liability for any policy reasons (element #4).

Guidance from the High Court

  • The High Court has provided limited guidance in navigating scope of liability provisions under civil liability acts.
  • For this unit, focus solely on two doctrines:
    1. Remoteness of damage
    2. Intervening acts (also referred to as novus actus interveniens).
  • Other scope of liability issues are not pertinent to this discussion.

Remoteness of Damage

  • The damage sustained by the plaintiff must not be considered too remote.
    • Traditionally, defendants were liable for all damage directly caused by their breach (referred to as the directness test).
    • The only way for defendants to escape liability under element #4 was to prove that the plaintiff’s damage was an indirect consequence of an intervening act.
  • Notable Case: The Wagon Mound (No 1)
    • The UK Privy Council abandoned the directness test for the sake of justice and morality, ruling that a defendant’s liability only extends to the kind or type of harm that could have been reasonably foreseen (the foreseeability test).
  • The Wagon Mound (No 2) later clarified that the term reasonable foreseeability for remoteness of damage shares the same meaning as it does for breach of duty (element #2).
  • Important Note: Avoid confusing the foreseeability inquiry at remoteness with inquiries at breach (element #2) and duty (element #1).
  • Example Case: Hughes v. Lord Advocate
    • The House of Lords held that a defendant need not foresee the precise manner in which the plaintiff’s damage occurred.
    • Liability arises only if the defendant could reasonably foresee that their breach of duty might lead to the type of accident that caused the plaintiff’s injury.
    • Importantly, the extent or severity of the plaintiff’s injury does not need to be reasonably foreseen by the defendant.
  • Concept: Eggshell Skull Principle
    • Holds that a defendant is liable for the full extent of a plaintiff’s injuries, even if the injuries are severe due to the plaintiff’s pre-existing condition.
    • Rule: The defendant must generally take their victim as they find them.
    • Example: Courts may disregard certain pre-existing conditions (e.g., alcoholism) while extending the principle to a plaintiff’s non-physical condition.
  • Challenges:
    • The foreseeability test doesn’t effectively answer whether the plaintiff’s type of harm is too remote.
    • Difficult cases hinge on whether the court adopts the plaintiff’s broad characterisation or the defendant’s narrow characterisation of the harm.

Case Study Questions on Metrolink Victoria Pty Ltd v. Inglis

  1. Identify the precise harm at issue.
  2. Analyze how the magistrate and VSCA characterized the kind of harm.
  3. Was Metrolink’s damage deemed too remote according to the VSCA?
  4. Discuss the guidance provided by the VSCA on characterising the kind of harm and assess its helpfulness.

Intervening Acts

  • Definition: An intervening act or event may occur following the original defendant’s negligence and before trial, potentially exacerbating the plaintiff’s injury or causing new injuries.
  • Liability Determination:
    • If the outcome remains within the scope of the original defendant’s liability, they remain liable for the plaintiff’s total damage.
    • If not, and an intervening act is found, the defendant is only liable for the initial damage or first injury.
  • Connection to Remoteness:
    • The doctrine of intervening acts and its relation to remoteness of damage can often be uncertain.
    • Approach:
      • Cover remoteness of damage before addressing intervening acts.
      • Review factual causation conclusions to identify potential intervening acts.

Case Study Questions

  1. Under what conditions is an act considered truly voluntary and thus an intervening act?
  2. Scenario: Driver A speeds, hits pedestrian B, crushing B’s left leg. B undergoes emergency surgery where surgeon C makes an error, resulting in amputation. If B sues A and C, how should B’s lawyer respond to A's assertion of remoteness regarding the amputated leg?
  3. Determining if a subsequent negligent act qualifies as an intervening act can be complex. Courts might assess:
    • Could the defendant have reasonably foreseen the intervening act? (foreseeability test)
    • Does the subsequent act fall within the original risk created by the defendant’s negligence—applying concepts like scope of risk?
    • Determination may also be made based on policy reasons independent of these tests.

Example Case

  • South Australia Asset Management Corp v. York Montague Ltd (SAAMCO):
    • A case involving a climber who suffers injury during an avalanche after being advised by a doctor that his knee was fit for climbing.
    • The court found that although the avalanche injury was foreseeable, it did not stem from the doctor's negligent advice about the knee, concluding that the scope of liability did not extend to that harm.

Policy and Practical Considerations

  1. The concept of contributory negligence should be treated as a defense rather than an intervening act.
  2. Some texts inaccurately categorize coincidences as intervening acts, which may lead to unclear policy decisions.
  3. Defendants might argue that a contingency of life—like a pre-existing condition—caused the injury independently of their negligence. If substantiated, the defendant's liability is limited to damages relating to the acceleration of injury or death caused by their breach.
  4. Mitigation: Recall that mitigation principles affect the scope of liability, particularly related to assessing damages, but do not apply while considering element #4.