New South Wales Consolidated Acts
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CIVIL LIABILITY ACT 2002 - SECT 5D
5D General principles
(1) A determination that negligence caused particular harm comprises the
(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.
(3) If it is relevant to the
determination of factual causation to determine what the person who suffered
harm would have done if the negligent person had not been negligent:
matter is to be determined subjectively in the light of all relevant
circumstances, subject to paragraph (b), and
(b) any statement made by the
person after suffering the harm about what he or she would have done is
inadmissible except to the extent (if any) that the statement is against his
or her interest.
(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.
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