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CIVIL LIABILITY ACT 2002 - SECT 5C

5C .         General principles

        (1)         A determination that the fault of a person (the tortfeasor ) caused particular harm comprises the following elements —

            (a)         that the fault was a necessary condition of the occurrence of the harm ( factual causation ); and

            (b)         that it is appropriate for the scope of the tortfeasor’s liability to extend to the harm so caused ( scope of liability ).

        (2)         In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) —

            (a)         whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and

            (b)         whether and why the harm should be left to lie where it fell.

        (3)         If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person ) would have done if the tortfeasor had not been at fault —

            (a)         subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and

            (b)         evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.

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

        [Section 5C inserted: No. 58 of 2003 s. 8.]



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