Further to my earlier posting, the appeal was dismissed and Fraser JA (with whom Morrison JA and Wilson J agreed) held:
- The correct approach to determine the necessary causal connection between breach of duty and a claimant’s loss and a supervening act or decision by the plaintiff is s.11 of the Civil Liability Act 2003 and must be applied, whether it is different at common law ;
- The test in s.11(1)(a) is concerned with the factual “but for” test, whereas s.11(1)(b) is concerned with normative determinations ;
- The normative limb can be determined by reference to established classes of cases, precedent and in a novel case, by the criteria in the section.
Brisbane Barrister – David Cormack