Conceptually the idea behind damages in tort is to place the plaintiff in the position that would have been occupied if the tort had not been committed (to be assessed as at the date of the breach except in personal injury cases). This is quite different to what happens for breaches of contract that seek to place the party in the position it would have occupied if the contract had been performed.
The Civil Liability legislation has to some extent diluted this proposition so that various caps are in place in respect of the amount of damages that may be sought. As a general proposition a plaintiff should only consider seeking damages if they are more than simply nominal damages given the reluctance of the law to concern itself with trivial matters.
There are a number of limiting factors such as causation that need to be considered early on. The traditional “but for” test is a useful guide for determining causation and works by asking the question: “whether loss would have occurred but for the defendants negligence?” The test, however, is open to criticism in circumstances where there are multiple sufficient causes for the damage. As a result of some of these issues the test has given way to the test in section 5 D of the Civil Liability Act. Essentially this test asks two questions firstly whether there is “factual causation” and secondly whether it is appropriate for liability to extend to the harm. Interesting questions arise within this context about whether there has been a break in the chain of causation. In a simplistic sense the causal chain will not be broken where subsequent acts are considered to be foreseeable. Remoteness of damage is in a sense absorbed by the question about whether liability should extend to the harm and will probably be satisfied if a type of harm was foreseeable. A corollary of this is that where a plaintiff is particularly vulnerable, and more so than what an ordinary person might be, the defendant is to take “the victim” as he “finds him” except perhaps with respect to psychological vulnerabilities.
The plaintiff is expected to mitigate losses. It is the responsibility of the defendant to go about proving the reasonable steps that the plaintiff could have taken to reduce the amount of damage. Practically this might mean that if a plaintiff suffers property damage by reason of water ingress and reasonable measures could be adopted to limit the damage then those measures need to be taken. Arguably, a plaintiff may be able to rebut this if the plaintiff did not have the financial and/or other means to take the steps.
Another limiting factor commonly relied upon by defendants is where the plaintiff failed to take reasonable care and contributed to the loss or where a third party contributed. This is specifically provided for in the legislation by section 5S of the Civil Liability Legislation and by section 9 (1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW).
Other provisions that may operate to limit damages include: section 35 where there is property damage and an apportionable claim, and section 50 in respect of intoxication. In the personal injury context there may be other limiting factors with respect to the fixing of the amount of damages under Division 2 and 3 and quite separately aspects that may limit the content of the duty (as apart from the amount of damages).
If you have suffered loss / damage by reason of someone else’s negligence with respect to your property then please contact our litigation lawyers to find out more.
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