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Damage: the gist of the action October 8, 2015

Alcan Gove Pty Ltd v Zabic [2015] HCA 33

8 Damage is the gist of the actionThe law is clear that actual damage or injury is an essential element of a cause of action in negligence for personal injury[7].  (It is not disputed that the respondent established the other elements of his cause of action, namely, the existence and breach of a duty of care, and that the mesothelioma was caused by the appellant’s breach of duty.)  What may qualify as actionable damage is, however, a question of fact and degree and ultimately of policy[8].  Kiefel J observed in Tabet v Gett that the “damage necessary to found an action in negligence … is the injury itself and its foreseeable consequences”[9].  As Hayne and Bell JJ said in the same case, damage refers to “some difference to the plaintiff [which] must be detrimental”[10].  In similar vein, in Harriton v Stephens, Crennan J, with whom Gleeson CJ, Gummow and Heydon JJ agreed, said[11]:

“Because damage constitutes the gist of an action in negligence, a plaintiff needs to prove actual damage or loss and a court must be able to apprehend and evaluate the damage, that is the loss, deprivation or detriment caused by the alleged breach of duty.  Inherent in that principle is the requirement that a plaintiff is left worse off as a result of the negligence complained about, which can be established by the comparison of a plaintiff’s damage or loss caused by the negligent conduct, with the plaintiff’s circumstances absent the negligent conduct.”

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