The normative determination under s 51(2) of the Wrongs Act 1958 (Vic) — whether a case is 'appropriate' and whether responsibility for harm should be imposed — is a question for the trial judge, not the jury. Section 51(2) is not a general fallback for plaintiffs who fail to establish factual causation; it is confined to cases quite out of the ordinary, particularly those involving multiple exposures or developing scientific knowledge about causation. If a plaintiff intends to rely on s 51(2), the basis of the claim must be set out in the pleadings or raised at the commencement of the trial.
The full text is available to signed-in members, including the 13 later cases that cite this judgment.
2 of the 13 citing cases carry a classified treatment. How each court treated it is available to signed-in members.