Australia, Aug. 11 -- New South Wales Land and Environment Court issued text of the following judgement on July 11:
1. These proceedings are brought under the Motor Accident Injuries Act 2017 (NSW) (MAIA). On 2 July 2024 the Personal Injury Commission decided that the claim by the Plaintiff was not suitable for assessment and was exempt under s 7.34(1)(b) of the MAIA, presumably due to complexity and the fact that the insurer denied liability.
2. By operation of s 3B(1)(e1) of the Civil Liability Act 2002 (NSW) (CLA), Divisions 1 to 4 and 8 of Part 1A apply to claims brought under the MAIA. Those provisions relate to negligence and contributory negligence.
3. The following provisions relate to these proceedings:
Division 1 Preliminary
5 Definitions
In this Part-
harm means harm of any kind, including the following-
(a) personal injury or death,
(b) damage to property,
(c) economic loss.
negligence means failure to exercise reasonable care and skill.
personal injury includes-
(a) pre-natal injury, and
(b) impairment of a person's physical or mental condition, and
(c) disease.
Division 2 Duty of Care
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless-
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)-
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5C Other principles
In proceedings relating to liability for negligence-
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
Division 3 Causation
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.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197f80c2c683e227157e820d)
Disclaimer: Curated by HT Syndication.
