Western Australian Current Acts Western Australian Current Acts (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.]