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Torts B Extended Remoteness Of Damage Notes

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This is an extract of our Torts B Extended Remoteness Of Damage document, which we sell as part of our Torts Law Notes collection written by the top tier of Monash University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Torts Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Remoteness of Damage Test of Remoteness: Reasonable Forseeability of the Same Kind of Harm A D won't be liable even if they had a duty, they breached it and their breach caused the harm, they will not be liable if the injury is too remote. P has to prove on the balance of probabilities that the harm was too remote. All the principles come from Common Law. The question asked at the stage of remoteness is a reasonable foreseeability test The test extends to the question of whether the kind of injury suffered by P was reasonably foreseeable Relevant Legislation s 51(1) of the Wrongs Act: A determination that negligence caused a particular harm comprises the following elements
- (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

Meaning of 'reasonable forseeability' Three types of 'Reasonable Forseeability' DUTY: Was it reasonably foreseeable to a reasonable person in the position of the D that careless conduct of any kind on the part of the D may result in damage of some kind to the P or to a class of persons to which the P belongs?
BREACH: Was it reasonably foreseeable to a reasonable person in the position of the D that the D's kind of carelessness may result in damage of some kind to the P or to a class of persons to which P belongs?
REMOTENESS: Was it reasonably foreseeable to a reasonable person in the position of the D that the D's kind of carelessness may result in damage of the same kind as that suffered by the P or to a class of persons to which P belongs? (Wagonmound #1)

Wagonmound #1

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Facts:

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Wagonmound was a ship docked at a wharf in Sydney harbour P are the owners of the wharf D are the owners of the ship D's ship is being loaded with oil and during the process one of the engineers working for D due to their negligence spills oil into the water which drifts to P's wharf o P at the time are working on ships, which included welding. o They note the oil but decide it is still safe to continue. However it caught fire because a piece of metal produced by welding fell onto a piece of cotton then sets the oil and wharf and some boats on fire Held: o While damage to the wharf as a result of fouling by the oil was a foreseeable consequence of the defendant's negligence, damage by fire was not. o D's conduct was causally linked to the fire but the injury is too remote o Damage by fire is not something a reasonable person would have foreseen

What's the threshold of foreseeability - how foreseeable does it have to be?

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To be reasonably foreseeable at the remoteness stage a risk must be real, in that it is not far fetched or fanciful If D has special knowledge about a risk, then it is from that perspective we are looking at whether or not it was reasonably foreseeable

Wagonmound #2

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Facts:

o Same as Wagonmound #1 o Different P (owner of one of the other ships that was destroyed) o Court observed that there was more evidence which suggested that fire

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was reasonably foreseeable as a consequence of D's breach Succeeded in proving that the negligence of letting the oil spill could give rise to damage by fire. The risk of fire by continuing to weld when oil was known to be present on the water was not farfetched or fanciful to the D in light of their knowledge If the D has special knowledge about a risk, it will be taken into account in determining reasonable foreseeability There was knowledge that fire could occur. It was foreseeable even though it would occur really rarely (low threshold) They're not using retrospective knowledge, it was just that there was better evidence

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