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Negligence and the Scope of Liability

Negligence and the Scope of Liability

Published on July 18, 2022 by Nada NajjarNada Najjar

1. Negligence and the scope of liability:

Most people would be right to think that if they suffer injury, loss, and damage as a result of someone else’s negligence, and they can prove it, then they will succeed in their case.  However, the legal test for proving negligence, and causation, is not as straight forward as the commonly accepted concepts and definitions.

It is relatively well known that in personal injury law a Plaintiff must be able to prove that a person or entity owed them a ‘duty of care’, and:

  • that there was a breach of that duty of care (i.e. negligent conduct), and;
  • that the breach of the duty of care is that which caused the injury, loss, or damage complained of.

In legal terms, the above is referred to as “factual causation”.

What is less well known is that the “scope of liability” must also be deemed as being reasonable to extend to the particular negligent party and their actions. This is sometimes referred to as “legal causation”. 

2. The relevant legislation

In NSW the law which governs common law personal injury claims is the Civil Liability Act 2002 (NSW)[1].  The relevant test for causation is set out in Division 3 section 5D of the Act. This section deals exclusively with the issue of causation.  The section relevantly states as follows:-

5D General Principles

(1) A determination that negligence caused particular harm comprises the following elements–

(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” ).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.


(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

3. Who decides scope of liability or legal causation and how?

The scope of liability or legal causation is determined solely by the Court/Judge who decides the case, and they must make a value judgement in this regard. There is a possibility that a Judge might find that it is not reasonable, for whatever reason, for the negligent party to be held responsible for the damage or injury they have caused through their negligent act.

 Some examples might be that the negligent party did not have the resources reasonably available to it at the time to allow them to discharge their duty of care appropriately. This might apply to a case of a hospital or paramedics, during the COVID-19 pandemic for example. We have all heard stories on the news of people dying in the back of ambulances in hospital carparks while waiting to be admitted or seen to in the hospital. On first assessment, this might seem like an obvious case of negligence. However, when one considers the matter in more detail, you wonder what more the hospital or ambulance service, could reasonably do to discharge their duty of care, if they are limited in their resources, and it is simply not possible for them to discharge their duty.  The issue is one of resources and public funding. 

The onus is on the Plaintiff to prove their case, and to prove each element of negligence and liability. 

Another situation where a Judge might find that it is not reasonable for the scope of liability to extend to the negligent party, is when a plaintiff is seen as not deserving of the law’s protection. This could include a plaintiff who has been found to be dishonest, albeit having proved factual causation for their injury, against an otherwise well-meaning Defendant. This would be particularly so where the negligence of the Defendant was not considered to be ‘gross negligence’.  In this instance, a Judge may find that the scope of liability should not extend to the Defendant’s negligence and to the harm arising from that negligence. 

It could be said that the ‘scope of liability’ test acts as a quality control type measure in the administration of justice.

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