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For the purpose of establishing negligence common law requires that the causation must be shown. However, the common law tests for causation have been modified in Australia. To establish negligence, common law requires that the plaintiff must show causation of the defendant’s act, which ultimately results in the plaintiff’s injury. Causation is defined as the “causal relationship between conduct and result” which is further divided into two categories as factual causation and legal causation. Australian courts discussed causation in the recent cases such as Amaca & Ors v Ellis (2010) HCA 5 and Woolworths v Srong (2010) NSWCA 282 in depth. In common law, courts will raise two questions to establish factual causation between the defendant’s conduct and the plaintiff’s loss. The first question is “but for the defendant’s act, would the harm have occurred? The second question is “is the defendant responsible in law for the damage which is brought on by the negligent conduct of the plaintiff. Many states have modified the common law causation to varying degrees. For instance, the Civil Liability Act of New South Wales in Section 5D states that to determine whether negligence caused particular harm two requirements should be satisfied. First, the negligence was a necessary condition of the occurrence of the harm. Second, the scope for the negligent person’s liability can be extended to the harm so caused. In an exceptional case, if the evidence is not sufficient to establish that the defendant’s conduct was a material cause of the damage to the plaintiff, Section 5D (2) should be applied. It requires that the courts should consider whether the responsibility for the harm should be imposed on the negligent party in exceptional cases. Section 5D (2) was discussed in Adeels Palace v Moubarak (2009) HCA 48, where the court decided that the section should not be applied in that case. However, the courts have not clearly stated what exactly “an exceptional case” is for the purpose of Section 5D (2).
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