283
Chapter 12
◆Damage — Causation
and Scope
1 Introduction
12.1 In Tabet v Gett (2010) 240 CLR 537; 84 ALR 292 at [109], Kiefel J stated
the well-established principle:
Damage is an essential ingredient in an action for negligence; it is the gist of the action [Williams v Milotin (1957) 97 CLR 465 at 474; [1957] ALR 1145]. The action developed largely from the old form of action on the case, in which it was the rule that proof of damage was essential to a plaintiff’s case [See W Prosser,
Handbook of the Law of Torts, 2nd ed, West, Minnesota, 1955, p 165; G Williams and A Hepple, Foundations of the Law of Tort, 2nd ed, Butterworths, London, 1984, p 60]. In Brunsden v Humphrey [(1884) 14 QBD 141 at 150] Bowen LJ pointed out that in certain classes of case the mere violation of a legal right imports damage, but that principle was “not as a rule applicable to actions for negligence: which are not brought to establish a bare right, but to recover compensation for substantial injury”. Generally speaking “there must be a temporal loss or damage accruing from the wrongful act of another, in order to entitle a party to maintain an action on the case” [Williams v Morland (1824) 2 B & C 910 at 916;107 ER 620 at 622], referred to in Brunsden at 150 per Bowen LJ]. Negligence in the abstract will not suffi ce [Hay or Bourhill v Young [1943] AC 92 at 116; [1942] 2 All ER 396 at 408–9 per Lord Porter;
Haynes v Harwood [1935] 1 KB 146 at 152].
12.2 When referring to the damage element of the negligence action, it is more than simply identifying that the plaintiff suffered some form of loss. The element requires consideration of the following issues:
1. whether the loss suffered by the plaintiff is a kind of damage recognised by the law;
2. whether the defendant’s breach caused the plaintiff’s loss (factual causation); and
3. whether it is appropriate to hold the defendant responsible for the plaintiff’s loss (scope of liability).
<AQ: have completed cite details>
Copyright
LexisNexis.
Sample
use
only.
284
12.3 In relation to the elements of negligence, it is the damage element which, as recommended by the Ipp Report,1 the civil liability legislation (except in the
Northern Territory) has modifi ed the most. However, recent decisions of the High Court have indicated dissatisfaction with the common law approach to causation and the court’s interpretation of the civil liability provision may bring the common law and the statutory approach into alignment. The common law approach remains relevant due to the exceptions of the civil liability’s application. For example, depending upon the jurisdiction, the legislation does not apply to an injury that is:
❖ a dust-related condition;
❖ the result of smoking or the use of other tobacco products or exposure to
tobacco smoke; or
❖ an injury for which workers’ compensation is payable.
See Civil Law (Wrongs) Act 2002 (ACT) s 41; Civil Liability Act 2002 (NSW) s 3B; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 4; Civil Liability Act 2003 (Qld) s 5; Wrongs Act 1936 (SA) s 4; Civil Liability Act 2002 (Tas) s 3B; Wrongs Act 1958 (Vic) s 45; Civil Liability Act 2002 (WA) ss 3A and 6.
2 Recognised Kind of Damage
12.4 Since damage is the gist of a negligence action, the plaintiff’s damage must be non-minimal and of a kind recognised by law. The law recognises property damage, personal injury, including pure psychiatric injury, and economic loss, be it consequential or pure economic loss.
12.5 While the term ‘damage’ is traditionally used to describe the subject matter of the third element of negligence, there are alternative terms which may be used, for example, ‘loss’, ‘injury’ and ‘harm’: Harriton v Stephens (2004) 59 NSWLR 694 at [41]–[42] per Spigelman CJ.
12.6 Under the civil liability legislation, the term ‘harm’ is used in preference to that of ‘damage’ and is defi ned as meaning ‘harm of any kind’ including personal injury or death, damage to property and economic loss.
See Civil Law (Wrongs) Act 2002 (ACT) s 40; Civil Liability Act 2002 (NSW) s 5; Civil Liability Act 2003 (Qld) Sch 2; Civil Liability Act 1936 (SA) s 3; Civil Liability Act 2002 (Tas) s 9; Wrongs Act 1958 (Vic) s 43; Civil Liability Act 2002 (WA) s 3.
12.7 Sometimes courts have denied recovery for some kinds of damage on the basis that no duty of care is owed or that the damage was ‘too remote in law’ rather than simply categorise the damage as not being of a kind recognised at
1. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at <http://revofneg.treasury.gov.au> (Recommendation 29).
◆
Copyright
LexisNexis.
Sample
use
only.
285
law. Nevertheless, as the High Court decisions in Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131 and CSR Ltd v Della Maddalena (2006) 80 ALJR 458 demonstrate, there will be situations where the manner in which the case is argued will require a determination as to whether the kind of damage is recognised in the context of the damage element of the action. In CSR Ltd v Della Maddalena, a workplace injury case, the nature of the appeal to the High Court required, inter alia, the court to determine whether, as a matter of evidence, the plaintiff had established that he suffered from a compensable kind of damage or injury: see, for example, Callinan and Heydon JJ at [197].
Ultimately, however, whether recognition of the kind of damage is determined as part of the duty, or as part of the damage element, the decision will be underpinned by similar common law principles, rules and policy considerations, especially the fear of indeterminate liability.
Damage Not Recognised at Law — Examples
12.8 In Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [219] it was
noted:
The phrase “legally cognisable” is used here to mean “capable of being known or recognised for the purposes of judicial proceedings”.
Loss associated to illegal activities
12.9 Where the damage consists of the termination of benefi ts fl owing from criminal or fraudulent activities the law does not recognise the loss as a compensable form of damage based upon policy grounds. In Meadows v Ferguson [1961] VR 594 the plaintiff claimed damages for personal injury, including lost wages. For the relevant period the plaintiff was a clerk to a starting-price bookmaker — an unlawful activity. The court held (at 598):
… the plaintiff, had he not been injured, would have continued in his employment by [the bookmaker], and that the earnings of which the plaintiff was deprived during his 12 weeks’ incapacity were those which he would have received for aiding and abetting [the bookmaker] in his business, which plainly was unlawful. I am, therefore, of opinion that the plaintiff’s award of special damages should include no sum in respect of loss of wages.
The non-recognition of this kind of damage has been consistently acknowledged as being based upon policy grounds: Royal Baking Powder Co v Wright, Crossley
& Co (1900) 18 RPC 95; Le Bagge v Buses [1958] NZLR 630; Mills v Baitis
[1968] VR 583; Burns v Edman [1970] 2 QB 541; State Rail Authority of New
South Wales v Wiegold (1991) 25 NSWLR 500.
Loss unable to be quantifi ed
12.10 If the loss claimed by the plaintiff is too vague to be capable of recognition the law will not recognise the damage: Roberts v Roberts (1864) 5 B & S 384; 122 ER 874 (expulsion from a social club held to be too vague).
<AQ: have inserted page no.> <AQ:note change to year>
Copyright
LexisNexis.
Sample
use
only.
286
Wrongful life
12.11 In Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391, the plaintiff’s claim was based upon the fact that the doctor had negligently failed to diagnose and inform the plaintiff’s parents that she was likely to be born with severe disabilities. The mother was able to prove that she would have terminated the pregnancy if she had been informed of the consequences of having rubella in the fi rst trimester of her pregnancy.
In Waller v James; Waller v Hoolahan (2006) 226 CLR 136; 226 ALR 457, the
defendants had failed to detect a genetic defect prior to carrying out the IVF procedure which resulted in the birth of the child. If the parents had known that there was a 50 per cent chance that the child would be born severely disabled, due to a genetic defect carried by the father, the parents would not have proceeded with the conception of the child using the father’s sperm, or the mother would have been tested during the pregnancy to determine if the foetus was carrying the genetic defect.
In both Harriton and Waller the primary issue for the High Court was whether life itself, albeit a profoundly disabled life, can be recognised as a form of damage. By a 6:1 majority in both cases, it was held that damage or harm for which the plaintiffs claimed compensation was not recognised for the purposes of a duty of care in a negligence action. Crennan J, who wrote the leading judgment, said in
Harriton (at [251]–[252]):
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. … A comparison between a life with disabilities and nonexistence, for the purposes of proving actual damage and having a trier of fact apprehend the nature of the damage caused, is impossible. Judges in a number of cases have recognised the impossibility of the comparison and in doing so references have been made to philosophers and theologians as persons better schooled than courts in apprehending the ideas of nonbeing, nothingness and the afterlife. [footnotes omitted]
12.12 When the parent is the plaintiff instead of the child (wrongful birth), the additional costs of raising a disabled child, over and above those of raising a healthy child, have been recognised in Australia by the Queensland Court of Appeal in Veivers v Connolly [1995] Qd R 326. The doctor negligently failed to advise the plaintiff that she had contracted rubella during the fi rst trimester of her pregnancy, with the result that the child was born severely disabled. The mother was successful in a negligence action against the doctor on the basis that, if she had been advised of the true situation, she would have legally terminated the pregnancy. In England, a similar decision was given in Parkinson v St James and
Seacroft University Hospital NHS Trust [2001] 3 All ER 97 (CA).
Copyright
LexisNexis.
Sample
use
287
12.13 Negligence for wrongful conception (mother would not have conceived but for negligence of defendant) involve claims for damages to compensate for the costs associated with raising the child. Unlike the damage in wrongful life, such loss may be compensated by the law. In Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131 the respondents sued the appellant for the negligent performance of a tubal ligation that resulted in the birth of a healthy but unwanted child. The High Court found in favour of the respondents. Damage was not in issue as the court could quantify the costs associated with raising a child. After that decision, provisions were enacted in New South Wales, Queensland and South Australia to prevent a court awarding damages for economic loss resulting from rearing and maintaining a child or any loss of earnings associated with the rearing or maintenance of the child: Civil Liability Act 2002 (NSW) s 71; Civil Liability Act 2003 (Qld) s 49A; Civil Liability Act 1936 (SA) s 67.
Grief etc
12.14 The law does not recognise general anxiety or vexation (Calveley v Chief Constable of Merseyside Police [1989] AC 1228; 1 [1998] All ER 1025) or emotional disturbance that does not manifest as some recognised psychiatric injury: Leonard
v Pollock [2012] WASCA 108.
12.15 In Coates v Government Insurance Offi ce of New South Wales (1995) 36 NSWLR 1 the distinction between grief and recognised psychiatric illness was in issue. The appellants were the children of a victim of a motor vehicle accident caused by the driver insured by the respondent. The court held that the appellants had not suffered a psychiatric illness and therefore their claim in negligence could not succeed. Clarke JA stated (at 21):
Although the grief in both cases appeared intense at times and of relatively long duration I do not think it can be said that the trial judge was wrong to conclude that the appellants had not established the existence of the injury necessary to sustain their claims.
12.16 The fear of developing a disease that has an extended incubation period is not a recognised form of damage — the disease must manifest itself to be actionable. However, if that fear is the starting point for the development of some form of psychoneurosis, or a psychosomatic illness which causes the plaintiff to suffer a psychiatric illness, that may be compensable: CSR Ltd v Della Maddalena (2006) 80 ALJR 458 at [198] per Callinan and Heydon JJ, citing Windeyer J in Mount Isa
Mines Ltd v Pusey (1970) 125 CLR 383 at 394; see also Gifford v Strang Patrick
Stevedoring Pty Ltd (2003) 214 CLR 269; J & K Clothing Pty Ltd v Mahmoud
[2004] NSWCA 207.
Loss of chance
12.17 In Rufo v Hosking (2004) 61 NSWLR 678, the New South Wales Court of Appeal discussed whether the loss of a better medical outcome could be claimed as damage in a medical negligence case. The court was of the opinion that if the plaintiff could prove on the balance of probabilities that there was a chance of a
Copyright
LexisNexis.
Sample
use
288
better outcome and that on the balance of probabilities they would have elected to have that chance, they could be compensated for that loss of chance: see [40]. 12.18 At the time of the decision, there had been no consideration of the issue by the High Court. The High Court took the opportunity to determine the issue in Tabet v Gett (2010) 240 CLR 537; 265 ALR 227. The court held (at [50]) that:
… in an action in tort where damage is the gist of the action, the issue which precedes any assessment of damages recoverable is whether a lost opportunity, as a matter of law, answers the description of “loss or damage” which is then compensable.
In that case the six-year-old appellant was admitted to hospital suffering from headaches and vomiting. A provisional diagnosis was made and two days later, while still in hospital, the appellant was unresponsive so a lumbar puncture was ordered. The next day a CT scan and EEG were carried out which revealed that the appellant was suffering from a brain tumour that had been there for two years. She underwent an operation but suffered irreversible brain damage. The appellant did not allege that the treatment or operation was negligent, instead it was claimed that the negligence was the failure to carry out a CT scan earlier and that this failure led to the appellant suffering the loss of a better medical outcome. All members of the High Court were of the opinion that to recognise loss of a better outcome, independent of any physical injury, as actionable damage, would require a radical change in the law of negligence: see Crennan J at [102]. Note the comment of Gummow ACJ at [27], that may leave open the possibility of loss of chance being compensated in a case where causation can be established, unlike in Tabet v Gett:
… this outcome will not require acceptance in absolute terms of a general proposition that destruction of the chance of obtaining a benefi t or avoiding a harm can never be regarded as supplying that damage which is the gist of an action in negligence.
12.19 In Hotson v East Berkshire Area Health Authority [1987] AC 750 the House of Lords held that it was for the plaintiff to prove, on the balance of probabilities, that the negligence of the defendant materially contributed to the damage suffered and not to the loss of the chance to avoid that damage. See also Gregg v Scott [2005] 2 WLR 268 and Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 at [6]–[10].
3 Factual Causation
12.20 Damage is often the result of a complex set of conditions and to satisfy the causation stage of the damage element, the plaintiff must be able to show that the defendant’s act or omission was causally related to the injury or damage suffered by the plaintiff. For example, in Barnett v Chelsea and Kensington
Hospital Management Committee [1969] 1 QB 428, there was no dispute that
the defendant hospital had failed to provide the plaintiff’s husband with medical
Copyright
LexisNexis.
Sample
use
289
treatment after he became ill from drinking tea containing arsenic. Despite the defendant’s acknowledged breach of its duty of care, the fact that the husband would have died anyway, even with medical treatment, meant that the plaintiff’s action failed since she could not establish a causal link between the defendant’s breach and her husband’s death.
12.21 As noted at 12.XX, above, the civil liability legislation addresses causation. Section 11 of the Civil Liability Act 2003 (Qld) provides:
(1) A decision that a breach of duty caused particular harm comprises the following elements —
(a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation);
(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).
(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty — being a breach of duty that is established but which can not be established as satisfying subsection (1)(a) — should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.
(3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach —
(a) the matter is to be decided 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 deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.
See also Civil Law (Wrongs) Act 2002 (ACT) s 45 (subs (1)(a) refers to negligence); Civil Liability Act 2002 (NSW) s 5D (negligence); Wrongs Act 1936 (SA) s 34 (negligence); Civil Liability Act 2002 (Tas) s 13 (breach of duty); Wrongs Act 1958 (Vic) s 51 (negligence); Civil Liability Act 2002 (WA) s 5C (fault). There is no equivalent in the Northern Territory legislation.
The fi rst paragraph of subs (1), referred to as factual causation, is the ‘statutory statement of the “but for” test of causation’: Strong v Woolworths Ltd (t/as Big W)
(2012) 285 ALR 420; 86 ALJR 267 at [18]; Adeels Palace Pty Ltd v Moubarak
(2009) 239 CLR 420; 260 ALR 628 at [55]. Subsection (2) applies when there are evidentiary gaps and therefore the ‘but for’ test is not appropriate: see 12.XX.
Subsection (1)(b) requires an evaluation of normative considerations to identify the scope of the defendant’s liability, separating these from factual causation. Subsection (4) requires a court to identify these normative considerations that may infl uence the decision: see 12.XX.
Copyright
LexisNexis.
Sample
use
290
The ‘But for’ Test
12.22 At common law, various tests were developed to determine factual causation, including the directness test, the ‘last opportunity’ test and the ‘but for’ test.2 Of these tests, only the ‘but for’ test continues to attract judicial consideration
in the context of a negligence action.
12.23 The ‘but for’ test requires the court to ask: on the balance of probabilities, would the plaintiff have suffered this damage, but for the defendant’s negligence? If the court fi nds that the damage would have occurred regardless of the defendant’s negligence, then the defendant’s negligence will be found not to be a cause of the plaintiff’s damage. As Hayne J commented in Pledge v Roads and Traffi c Authority
(2004) 205 ALR 56; 78 ALJR 572 at [15], the value of the test is that, in most cases, its use will identify ‘the role which a particular act or omission played in the occurrence of an event’.
12.24 In Strong v Woolworths Ltd (t/as Big W) (2012) 285 ALR 420; 86 ALJR 267 at [18] the High Court stated:
While the value of that test [the ‘but for’ test] as a negative criterion of causation has long been recognised, two kinds of limitations have been identifi ed. First, it produces anomalous results in particular cases, exemplifi ed by those in which there is more than one suffi cient condition of the plaintiff’s harm. Secondly, it does not address the policy considerations that are bound up in the attribution of legal responsibility for harm. [footnotes omitted]
12.25 One of the cases to recognise the limitations of the test was March v E
& MH Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423 where it was noted
that the ‘but for’ test provides no indication as to when an antecedent cause of the damage will be regarded by the courts as being a legally signifi cant cause of the plaintiff’s damage. As Deane J commented (at CLR 523; ALR 435):
… the mere fact that something constitutes an essential condition (in the ‘but for’ sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a ‘cause’ of that occurrence as a matter of either ordinary language or common sense. Thus, it could not, as a matter of ordinary language, be said that the fact that a person had a head was a ‘cause’ of his being decapitated by a negligently wielded sword notwithstanding that possession of a head is an essential precondition of decapitation … the question whether conduct is a ‘cause’ of injury remains to be determined by a value judgment involving ordinary notions of language and common sense.
12.26 See McHugh J’s comment in the medical negligence case of Chappel
v Hart (1998) 195 CLR 232; 156 ALR 517 at [48], where his Honour, in the
minority of 3:2, concluded that the defendant’s failure to warn his patient of the risks of the operation ‘was no more causative of the [injury] than were his medical qualifi cations’. The evidence was that the operation was performed without
2. One reason for the variety of tests was the need to circumvent the common law rule that any negligence on the part of the plaintiff was a complete defence to the plaintiff’s claim.
◆
Copyright
LexisNexis.
Sample
use
only.
291
negligence, but the respondent would not have undergone the operation if she had been warned of the risks. However, she would have had to have undergone the operation at some stage, but would have sought the most experienced surgeon available. The majority held that the doctor’s failure to warn to contribute to the harm and the doctor was therefore liable. Honoré analyses this decision and concludes:
Dr Chappel violated Mrs Hart’s right to choose for herself, even if he did not increase the risk to her. Judges should vindicate rights that have been violated if they can do so consistently with the authority of statutes and decided cases. In this case the High Court did just this, in effect by making Dr Chappel, when he operated on Mrs Hart, strictly liable for any injury he might cause of the type against which he should have warned her. For Dr Chappel did cause the harm that Mrs Hart suffered, though not by the advice he failed to give her. He did so by operating on her and, though he operated with due care, he slit open her oesophagus with disastrous consequences. Morally he was responsible for the outcome of what he did.3
The ‘Common Sense and Experience’ Test
12.27 The limitations of the ‘but for’ test led to the development of the ‘common sense and experience’ test. In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423, the heavily intoxicated plaintiff was injured when he drove into the rear of the defendant’s truck. The defendant had parked the truck, with its rear and hazard lights on, in the middle of the road at night to load bins of farm produce. The trial judge found for the plaintiff but reduced his damages by 70 per cent to take into account his contributory negligence. The question the High Court was required to answer was whether the ‘conduct of the defendant in parking a truck in the middle of the street was a legally operative cause of the damage suffered by the plaintiff’: at CLR 526; ALR 437 per McHugh J. The High Court unanimously agreed with the trial judge and found that both the defendant’s parking of its truck in the middle of the road and the plaintiff’s intoxication were each a cause of the accident in which the plaintiff suffered his injuries or damage.
Mason CJ, with whom Dean, Toohey and Gaudron JJ agreed, rejected the use of lengthy analysis of causation theory4 as not being useful in ascertaining or
apportioning legal responsibility. Instead, his Honour held that ‘at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions suffi cient to produce that damage’: at CLR 509; ALR 425.
Their Honours also confi rmed the continuing validity of the ‘but for’ test, but held that, in certain circumstances, the results yielded by that test must be ‘tempered by the making of value judgments and the infusion of policy considerations’: at CLR 516; ALR 431 per Mason CJ.
3. T Honoré, ‘Medical Non-Disclosure, Causation and Risk: Chappel v Hart’ (1997) 7 TLJ 1 at 8. 4. See, for example, H L A Hart and T Honoré, Causation in the Law, 2nd ed, Clarendon Press,
Oxford; Oxford University Press, New York, 1985.
<AQ: reword> <AQ: have taken ref details to new fn]> <AQ: his?> ◆
Copyright
LexisNexis.
Sample
use
only.
292
12.28 The common law test of ‘common sense and experience’ will be used in circumstances where the results yielded by the ‘but for’ test need to be ‘tempered’ by normative considerations, including value judgments involving ordinary notions of language and common sense and policy considerations. Typical situations where the ‘common sense and experience’ test will be applied is in cases which raise diffi culties due to antecedent causes and multiple causes. See, for example,
Bennett v Minister for Community Welfare (1992) 176 CLR 408; Medlin v State
Government Insurance Commission (1995) 182 CLR 1; 127 ALR 180; Pledge
v Roads and Traffi c Authority (2004) 205 ALR 56; 78 ALJR 572; Roads and Traffi c
Authority v Royal (2008) 245 ALR 653; 82 ALJR 870.
12.29 In Pledge v Roads and Traffi c Authority (2004) 205 ALR 56; 78 ALJR 572, the High Court applied the ‘common sense and experience’ test to determine whether, in the circumstances of that particular case, each of three possible causes should be regarded as a legally signifi cant cause of the motor vehicle accident in which the nine-year-old plaintiff was injured. The three possible causes were:
1. the failure to keep a proper lookout by the fi rst defendant driver who struck the child;
2. the joint failure of the council and road traffi c authority to appropriately maintain the foliage on the median strip so that the driver’s view of the child stepping off the median strip was not obscured; and
3. the style and location of parking bays built by the road traffi c authority and the failure by the council to post warning signs as to the dangers posed by their presence.
In explaining which of the causal factors should be held legally relevant or signifi cant, their Honours unanimously agreed that the third possible cause, that is, the location and design of the parking bays, was insuffi cient grounds to hold that the lack of a sign of the kind postulated had been a cause of the accident. As Hayne J explained (at [13]):
No doubt the positioning of the parking bays and their use on the day of the accident were events which form a part of the history which led to Nadia Ryan being struck by the vehicle which Mr Pledge was driving. But did the presence or design of the bays play a role which, in the context of an inquiry about negligence, can properly be described as causative? If the provision or the design of the parking bays … played any role in the happening of this accident it was so slight as properly to be discarded from consideration in assessing legal responsibility.
12.30 The ‘commonsense and experience’ test is also not a complete answer to the question of causation. The High Court in Travel Compensation Fund
v Tambree (2005) 224 CLR 627; (2006) 80 ALJR 183 held that the common law
test is not of general application but may operate differently according to the purpose for which the causation question is asked. Gummow and Hayne JJ, in particular, were also doubtful as to whether there is any ‘common sense’ notion of causation which can provide a useful, still less universal, legal norm. Instead, their Honours suggested:
Copyright
LexisNexis.
Sample
use
293
There are, therefore, cases in which the answer to a question of causation will require examination of the purpose of a particular cause of action, or the nature and scope of the defendant’s obligation in the particular circumstances. In this case, the primary task of the Court is to apply the legislative norms to be found in the Fair Trading Act …: at [45].
12.31 In Travel Compensation Fund v Tambree (2005) 224 CLR 627; (2006) 80 ALJR 183, the plaintiff was the statutory insurer for travel agents and the defendants were the accountant and auditor of a licensed travel agent. As required by the statutory insurance scheme, the defendants provided fi nancial statements to the plaintiff statutory insurer. The fi nancial statements were found to be misleading and deceptive, a breach of the consumer protection legislation. The causation issue arose because the plaintiff’s damage, being the payment of compensation claims to the travel agent’s clients, mainly arose at a time when the travel agent was unlicensed and, therefore, trading illegally. In the High Court, their Honours unanimously agreed that where a cause of action is conferred by statute, the statutory objectives and purpose are the primary source of the relevant legal norms: see, for example, Gleeson CJ at [28], Kirby J at [66] and Callinan J at [79]. As Gummow and Hayne JJ commented (at [45]):
It is now clear that there are cases in which the answer to a question of causation will differ according to the purpose for which the question is asked. As was recently emphasised in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [(2005) 215 ALR 385 at 406–7; 79 ALJR 1079 at 1095 per Gummow, Hayne and Heydon JJ], it is doubtful whether there is any ‘common sense’ notion of causation which can provide a useful, still less universal, legal norm. There are, therefore, cases in which the answer to a question of causation will require examination of the purpose of a particular cause of action, or the nature and scope of the defendant’s obligation in the particular circumstances. [footnotes omitted]
See also Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; 79 ALJR 1079 at [97]–[97]; Toll Pty Ltd v Dakic [2006] NSWCA 58. 12.32 In Roads and Traffi c Authority v Royal (2008) 245 ALR 653; 82 ALJR 870 the defendant (Royal) was in a car accident at an intersection with the plaintiff who took action against Royal and the Roads and Traffi c Authority (RTA) in negligence. The trial judge found the defendant negligent, but held that the RTA was not in breach of its duty to Royal. On appeal it was held that the RTA was in breach of its duty — failing to improve the vision of the drivers by moving the stop sign at the intersection and failing to construct a different intersection that was safer. The issue before the High Court was whether the breach of the RTA (the appellant) had caused the plaintiff’s loss.
The defendant argued that if there was no cross-intersection, there would not have been a cross-intersection accident, that the cross-intersection had a design fault which could have been overcome by replacing the cross-intersection and by failing to do this, the RTA caused the accident. The High Court pointed out that the majority of the Court of Appeal had erroneously relied upon the ‘but for’ test as a comprehensive test of causation: at [32]. Even though if a differently designed
<AQ: amend para span>
Copyright
LexisNexis.
Sample
use
only.
294
intersection existed, the accident on the balance of probabilities would not have happened, on the evidence the design of the intersection had not contributed to the accident. The High Court held that causation had not been established. Gummow, Hayne and Heydon JJ stated (at [25]):
… even if it could be said that the appellant’s breach of duty “did materially contribute” to the occurrence of an accident, “by creating a heightened risk of such an accident” … it made no contribution to the occurrence of this accident. [emphasis in the original]
The ‘Necessary Condition’ Test
12.33 The civil liability legislation states that the negligence must be a necessary condition of the harm: see Civil Law (Wrongs) Act 2002 (ACT) s 45; Civil Liability Act 2002 (NSW) s 5D; Civil Liability Act 2003 (Qld) s 11(1); Wrongs Act 1936 (SA) s 34; Civil Liability Act 2002 (Tas) s 13; Wrongs Act 1958 (Vic) s 51; Civil Liability Act 2002 (WA) s 5C. There is no equivalent in the Northern Territory. 12.34 Unlike the common law ‘common sense and experience’ test, where normative issues can be considered, under the civil liability legislation, normative issues are not relevant for factual causation. Factual causation under the legislation is the ‘but for’ test: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628 at [45]; Zanner v Zanner [2010] NSWCA 343.
In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628 at [43]
it was stated:
Dividing the issue of causation in this way expresses the relevant questions in a way that may differ from what was said by Mason CJ, in March v Stramare (E & M H) Pty Ltd [(1991) 171 CLR 506; 99 ALR 423] to be the common law’s approach to causation. The references in March v Stramare to causation being “ultimately a matter of common sense” were evidently intended to disapprove the proposition “that value judgment has, or should have, no part to play in resolving causation as an issue of fact”. By contrast, s 5D(1) treats factual causation and scope of liability as separate and distinct issues. [footnotes omitted]
In that case the respondent was shot on the appellant’s premises (a restaurant and nightclub). It was argued that the appellant was negligent for not having suffi cient security on the premises for the New Year’s Eve function. The court explained that ‘the fi rst of the two elements identifi ed in s 5D(1) (factual causation) is determined by the “but for” test: but for the negligent act or omission, would the harm have occurred?’: at [45]. The court thought that the evidence did not prove that on the balance of probabilities additional security would have prevented the respondent from being shot:
Security personnel may have been able to deter or prevent re-entry by the drunk or the obstreperous would-be patron willing to throw a punch. There was, however, no basis in the evidence for concluding that security staff at the entrance to the restaurant would have deterred or prevented the re-entry to the premises of a man armed with a gun when later events showed he was ready and willing to use the weapon on persons unconnected with his evident desire for revenge: at [47].
Copyright
LexisNexis.
Sample
use
295
The respondent did not prove factual causation by pointing to the various possibilities that may have happened if the circumstances were different: at [50]. The court also pointed out that the ‘but for’ test was not satisfi ed merely because the injury suffered was the ‘very kind of thing’ the duty required the appellant to take reasonable steps to prevent: at [51].
12.35 In Wallace v Kam [2012] NSWCA 82 the plaintiff alleged that the doctor had been negligent in failing to warn of material risks associated with an operation. The material risks were the possibility of local nerve damage and a 5 per cent risk of paralysis. The plaintiff did not suffer paralysis but did suffer local nerve damage. The evidence was that if the plaintiff had been warned of the possibility of local nerve damage he would still have undergone the operation. However, if he had been advised of the 5 per cent chance of paralysis, he would not have had the operation. The court held that for factual causation under the civil liability legislation there had to be a connection between the negligence and the occurrence of the particular harm. Basten JA held (at [175]):
Although it may be said that a number of physical conditions were “necessary” for the occurrence of the harm in the present case, the failure to warn of the risk which came to pass was not one. Accordingly, that aspect of the negligence of the respondent did not bear that causal relationship with the outcome suffi cient to warrant imposing on him responsibility for that harm. That conclusion is at least consistent with the language of s 5D(1)(a) [Civil Liability Act 2002 (NSW)].
See also Allsop P who held that the risk of local nerve injury was a separate risk to that of the risk of paralysis. Therefore, as the failure to warn of paralysis did not materialise in harm to the plaintiff, there was no causation as the plaintiff would have undergone the operation if warned of the possibility of the local nerve damage.
12.36 In Strong v Woolworth Ltd (t/as Big W) (2012) 285 ALR 420; 86 ALJR 267 the appellant was injured by a fall outside the respondent’s premises inside a shopping centre. The appellant walked with crutches due to a disability, and one of the crutches came into contact with a hot potato chip which was on the fl oor. This caused the crutch to slide and the appellant fell. The appellant alleged that the respondent was in breach of its duty of care by failing to institute and maintain a cleaning system to detect spillages and foreign objects within its sidewalk sales area. To prove factual causation the appellant had to establish that had a periodic system of cleaning and inspection of the sidewalk sales area been implemented on the day of the incident, on the balance of probabilities the hot chip would have been detected and removed before she came into contact with it: at [32].
The Court of Appeal had held that it could not be concluded that it was more probable than not that the appellant would not have fallen had there been cleaning of the area at 15-minute intervals as well as employees of the respondent on the lookout for spillages. An assumption was made by the Court of Appeal that hot chips were more likely to be eaten at lunch time, the time of the incident.
Copyright
LexisNexis.
Sample
use
296
On appeal the High Court discussed factual causation under the civil liability legislation. The court noted that factual causation required ‘proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm’ and explained (at [20]):
A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant’s negligent act or omission which is necessary to complete a set of conditions that are jointly suffi cient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a) [Civil Liability Act 2002 (NSW)]. In such a case, the defendant’s conduct may be described as contributing to the occurrence of the harm.
The High Court was of the opinion that although there may be more than one cause of a plaintiff’s loss, a defendant’s breach may still be a necessary condition of the harm and satisfy factual causation under the statute.
12.37 See also Zanner v Zanner [2010] NSWCA 343 where the respondent was injured when her 11-year-old son, the appellant, was manoeuvring a car into the carport at their home. The appellant’s foot slipped causing the car to lurch forward and strike the respondent who was standing in front of the car. The appellant argued that the respondent’s conduct of allowing the appellant to move the car that was the cause of the accident. Applying the test for factual causation, ‘but for’ the appellant’s negligence in moving the car the respondent would not have been injured and also, ‘but for’ the respondent allowing the appellant to move the car the respondent would not have been injured.
Allsop P held (at [11]):
… the notion of cause at common law can incorporate “materially contributed to” in a way which would satisfy the “but for” test. Some factors which are only contributing factors can give a positive “but for” answer. Both the driver who goes through the red light and the driver with whom he collides who is not paying attention contribute to the accident. If either episode of neglect had not occurred the accident would not have occurred.
The Evidentiary Gap
12.38 In Strong v Woolworth Ltd (t/as Big W) (2012) 285 ALR 420; 86 ALJR 267 the High Court held that even if there is more than one factor contributing to the plaintiff’s loss, there is no need to apply the ‘exceptional case’ law as in subs (2) of the civil liability legislation. Subsection (2) states:
In deciding in an exceptional case, in accordance with established principles, whether a breach of duty — being a breach of duty that is established but which can not be established as satisfying subsection (1)(a) — should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach. See Civil Law (Wrongs) Act 2002 (ACT) s 45(2); Civil Liability Act 2002 (NSW) s 5D(2); Civil Liability Act 2003 (Qld) s 11(2); Wrongs Act 1936 (SA) s 34(2); Civil <AQ: delete ‘that’?>
Copyright
LexisNexis.
Sample
use
only.
297
Liability Act 2002 (Tas) s 13(2); Wrongs Act 1958 (Vic) s 51(2); Civil Liability Act 2002 (WA) s 5C(2). There is no equivalent in the Northern Territory legislation. 12.39 In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628 it was pointed out that the phrase ‘exceptional case’ is not defi ned in the civil liability legislation and ‘[w]hether, or when, s 5D(2) [Civil Liability Act 2002 (NSW)] is engaged must depend, then, upon whether and to what extent “established principles” countenance departure from the “but for” test of causation’: at [54]. The High Court held (at [57]) that the case was not an exceptional one requiring consideration of whether responsibility should be imposed upon the party in breach:
It may be that s 5D(2) was enacted to deal with cases exemplifi ed by the House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd [[2003] 1 AC 32; [2002] 3 All ER 305] where plaintiffs suffering from mesothelioma had been exposed to asbestos in successive employments. Whether or how s 5D(2) would be engaged in such a case need not be decided now. The present cases are very different. No analogy can be drawn with cases like Fairchild. Rather, it would be contrary to established principles to hold Adeels Palace responsible in negligence if not providing security was not a necessary condition of the occurrence of the harm but providing security might have deterred or prevented its occurrence, or might have resulted in harm being suffered by someone other than, or in addition to, the plaintiffs. As in Modbury [Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411], the event which caused the plaintiffs’ injuries was deliberate criminal wrongdoing, and the wrongdoing occurred despite society devoting its resources to deterring and preventing it through the work of police forces and the punishment of those offenders who are caught. That being so, it should not be accepted that negligence which was not a necessary condition of the injury that resulted from a third person’s criminal wrongdoing was a cause of that injury. Accordingly, the submission that the plaintiffs’ injuries in these cases were caused by the failure of Adeels Palace to take steps that might have made their occurrence less likely, should be rejected.
See also French v QBE Insurance (Australia) Pty Ltd (2011) 58 MVR 214 where the court held that causation had not been established under s 11(1)(a) of the Civil Liability Act 2003 (Qld) and the circumstances did not require s 11(2) to be applied: at [57]–[65].
12.40 Exceptional cases are where there are multiple or complex causes, usually operating more or less simultaneously, and which often occur in the context of workplace or medical negligence cases. They are one of the most challenging questions in the law of negligence when there has clearly been a breach of the duty of care but there is an evidential gap in the sense that it is not possible for the plaintiff to prove, on the balance of probabilities, that the defendant’s breach was a cause of the plaintiff’s damage.
12.41 In particular, these cases are distinguished by the fact that, because of limitations in medical knowledge, it is impossible for the plaintiff to surmount the ‘evidential gap’ and to prove, on the balance of probabilities, that the defendant’s negligence was a necessary cause of the plaintiff’s damage. In these cases, the courts have recognised that the better question to ask is whether, on the balance
Copyright
LexisNexis.
Sample
use
298
of probabilities, the defendant’s negligence made a ‘material contribution’ to the risk of the damage occurring: McGhee v National Coal Board [1973] 1 WLR 1; [1972] 3 All ER 1008; Bonnington Castings Ltd v Wardlaw [1956] AC 613. 12.42 The facts and decision by the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1; [1972] 3 All ER 1008 illustrate the problem of establishing causation in fact where the defendant’s negligence is, on a common sense basis, one of the causal factors but it is impossible, on the balance of probabilities, to disentangle that cause from others. McGhee concerned a workman who was employed to empty pipe and brick kilns at a brickworks and who contracted dermatitis. In an action against the employers, the breach of duty alleged was failure to take reasonable care to provide adequate washing facilities, including showers. The employers admitted breach but argued the plaintiff had failed to prove that the breach caused contraction of the disease.
The House of Lords acknowledged that there was an evidential gap in that the plaintiff’s medical evidence could not establish that, had he been able to wash immediately in showers provided by his employers, he would not have contracted the disease. Their Honours nevertheless held that, in the absence of complete medical knowledge of all the material factors relating to the disease, there was no substantial difference between materially increasing the risk of injury and making a material contribution to the injury. Therefore, the plaintiff was entitled to recover for an injury within the risk which the employer had created: compare
Wilsher v Essex Area Health Authority [1987] QB 730; Hotson v East Berkshire
Area Health Authority [1987] AC 750. The Australian High Court has applied
McGhee in a series of cases including Chappel v Hart (1998) 195 CLR 232; 156
ALR 517; Naxakis v Western General Hospital (1999) 197 CLR 269; Rosenberg
v Percival (2001) 205 CLR 434.
12.43 The House of Lords confi rmed the McGhee approach in Fairchild
v Glenhaven Funeral Services Ltd [2003] 1 AC 32. In Fairchild, the plaintiffs
contracted mesothelioma after being exposed to asbestos by successive employers. The nature of the disease is such that it is not known whether or not just one asbestos fi bre can cause the disease as opposed to a cumulative exposure over a period of time. Therefore, the plaintiffs were unable to prove that ‘but for’ the negligence of any one employer they would not have contracted the disease, or that employment with any one of the employers was ‘a necessary condition’ of the disease. Nevertheless, their Honours held that it was suffi cient that the plaintiffs were able to establish, on the balance of probabilities, that each of the defendants had materially increased the risk that the plaintiffs would contract the disease.
12.44 ‘Material contribution to the risk’ of harm or damage was considered again by the House of Lords in Barker v Corus (UK) Ltd [2006] 3 All ER 785; [2006] 2 AC 572. Their Lordships held that where a defendant had made a material contribution to the risk that the plaintiff’s husband would contract mesothelioma, then the fact that he had been self-employed for a period of time would be relevant
Copyright
LexisNexis.
Sample
use
299
only to the ascertainment of the degree of the ‘material contribution to the risk’ and to the quantum of the award damages. However, in Sienkiewicz v Greif (UK)
Ltd; Willmore v Knowsley Metropolitan Borough Council [2011] 2 WLR 523 at
[18] it was recognised that a ‘special rule’ as to causation for mesothelioma cases had been created by the decision of Fairchild v Glenhaven Funeral Services Ltd
[2003] 1 AC 32:
The special rule of causation applied to mesothelioma was devised because of ignorance about the biological cause of the disease. It was accepted in Fairchild’s case and Barker’s case that this rendered it impossible for a claimant to prove causation according to the conventional ‘but for’ test and this caused injustice to claimants.
12.45 This was acknowledged by the High Court in Amaca Pty Ltd (under NSW administered winding up) v Booth; Amaba Pty Ltd (under NSW administered winding up) v Booth (2011) 283 ALR 461; 86 ALJR 172 (Amaca v Booth). French CJ commented that Fairchild had developed a ‘modifi ed concept of causation’ which created a new head of tortious liability: at [52]. See also Gummow, Hayne and Crennan JJ at [80]–[81].
12.46 Amaca v Booth involved an ‘exceptional case’, however, as the injury was a dust disease, mesothelioma, the civil liability legislation did not apply: see 12.X. The legislation does not defi ne ‘exceptional case’ but it does state that an exceptional case is to be decided ‘in accordance with established principles’.
Amaca v Booth demonstrates the diffi culty in establishing causation when the
plaintiff has been exposed to asbestos from a variety of sources. The facts were that the plaintiff had been exposed to asbestos in the following situations:
❖ home renovations when he was a child;
❖ loading a truck as a youth; and
❖ as a mechanic working on brake linings from 1953 to 1983.
The respondent sued the manufacturer of the brake linings in negligence for his contracting of mesothelioma. The New South Wales Dust Diseases Tribunal held that the asbestos in brake linings had materially contributed to the respondent’s contraction of mesothelioma. The Court of Appeal agreed that causation had been established. The High Court granted special leave to appeal on the issue of whether causation could be established by an increase in risk and whether the Court of Appeal had relied upon insuffi cient expert opinion evidence in respect of causation.
The appellants argued that ‘it was not possible to say which exposures in fact made a material contribution to its development or when or why’: at [37]. The trial judge had assessed the appellants’ responsibility for the respondent’s exposure to asbestos that was additional to environmental background exposure as 10 per cent for Amaca and 20 per cent for Amaba. The appellants argued that this meant causation had been made out on a small increase in the risk of harm: at [39].
French CJ stated that causation could not be established on an alleged increase in risk: at [41]. His Honour stated (at [42]–[43]):
Copyright
LexisNexis.
Sample
use
300
It is necessary, nevertheless, to refl ect upon the relationship between risk and causation. In ordinary usage “risk” refers to a hazard or danger or the chance or hazard of loss. Assessment of the risk of an occurrence is prospective in character. It can be expressed as an ex ante probability that the occurrence will occur. If quantifi able, that probability may be expressed numerically as a fi gure greater than “zero” up to “one” which denotes certainty. The range of probabilities may be traversed by terms such as “mere possibility”, “real chance”, “more likely than not”, “highly likely” and, ultimately, “certainty”.
The existence of an association or a positive statistical correlation between the occurrence of one event and the subsequent occurrence of another may be expressed as a possibility, which may be no greater than a “real chance” that, if the fi rst event occurs, the second event will also occur. The mere existence of such an association or correlation does not justify a statement, relevant to factual causation in law, that the fi rst event “creates” or “gives rise to” or “increases” the probability that the second event will occur. Such a statement contains an assumption that if the second event occurs it will have some causal connection to the fi rst. However, if the association between two events is shown to have a causal explanation, then the conclusion may be open, if the second event should occur, that the fi rst event has been at least a contributing cause of that occurrence. An after-the-event inference of causal connection may be reached on the civil standard of proof, namely, balance of probabilities, notwithstanding that the statistical correlation between the fi rst event and the second event indicated, prospectively, no more than a ‘mere possibility’ or ‘real chance’ that the second event would occur given the fi rst event. [footnotes omitted]
In a joint judgment, Gummow, Hayne and Crennan JJ held (at [88]):
The epidemiological evidence, considered by itself, did leave open the inference that cumulative exposure to asbestos increased the risk of contracting mesothelioma by developing bodily processes to an irreversible point. Further, as Dr Leigh emphasised in his report, inability to demonstrate epidemiologically a statistically signifi cant increase in risk in motor mechanics, relative to other occupational categories, does not, in any way, negate a causal inference in an individual case where, beyond the general background environment, the only asbestos exposure was incurred in that occupation.
The majority held that causation had been established. Heydon J was a dissenting judgment and held that to prove causation the respondent had to establish that exposure to asbestos before his work as a ‘had not caused the irreversible changes in his body which led him later to display the symptoms of mesothelioma’ and that ‘some of the fi bres to which he was exposed as a brake repairer were Amaca fi bres (as distinct from the fi bres of other brake manufacturers), and that they caused those changes in his body’: at [103]. His Honour noted (at [93]) that legislation may be more suitable than the common law action of negligence:
The extent of exposure to asbestos amongst those now living, the likely exposure amongst those yet to be born, and the likelihood of further injury taking place when asbestos is removed from the many places where it is now found, mean that problems of the kind thrown up in these appeals will remain for decades to come. Perhaps a social-medical problem of this size requires a legislative solution.
<AQ: reword>
Copyright
LexisNexis.
Sample
use
only.
301
12.47 See also Amaca Pty Ltd v Ellis (2010) 240 CLR 111; 263 ALR 576 where material contribution was not relevant because a connection between exposure to asbestos and the harm was not established. In that case Paul Cotton who had died from lung cancer had commenced actions in negligence against two different employers, alleging that his employment had exposed him to asbestos, causing him to contract lung cancer. Cotton was also a smoker who smoked on average 15 to 20 cigarettes a day for more than 26 years. There was no issue that a duty of care was wed and had been breached, but the High Court had to consider whether causation was to be determined by applying the ‘but for’ test, ‘would Mr Cotton have contracted lung cancer but for the negligent exposure to asbestos?’: at [11].
The epidemiological studies considered by the court supported two conclusions:
❖ that it was ‘more probable than not’ that Cotton’s smoking was a necessary
condition for his cancer; and
❖ that the risks associated with asbestos, ‘whether alone or in conjunction with smoking, are low and not suffi cient to found the inference which the plaintiff sought to have made’ (that is, that it was more probable than not that Cotton’s exposure to asbestos fi bres was a cause of the cancer): at [64]. Therefore, the court held (at [65]) that causation had not been established:
It was not shown to be more probable than not that asbestos was a cause of (a necessary condition for) his cancer. It was not shown that exposure to asbestos made a material contribution to his cancer. Material contribution was not shown because a connection between Mr Cotton’s inhaling asbestos and his developing cancer was not demonstrated.
Multiple Tortfeasors
12.48 Where two or more defendants have caused the plaintiff’s damage, the defendants are referred to as concurrent (joint or several) or successive tortfeasors: see Chapters 11 and 21. In these situations, the courts have held that it is suffi cient for the plaintiff to establish, on the balance of probabilities, that each defendant or tortfeasor materially contributed to the plaintiff’s damage.
12.49 In these cases, the diffi culty is not that there is an evidential gap; instead, the diffi culty is determining who should bear what proportion of the responsibility for the harm. These cases should not, therefore, be confused with the ‘exceptional cases’ discussed immediately above. In these cases, it is possible to establish that each tortfeasor’s negligence was a necessary condition of the plaintiff’s damage; the diffi culty is the extent of the damage for which each tortfeasor should be held responsible.
The distinction is illustrated by the case of Nilon v Bezzina [1988] 2 Qd R 420, where the plaintiff was involved in a motor vehicle accident in 1976 and, again, in another in 1982. In both accidents, the plaintiff suffered damage to his spine and brought an action against each defendant. The two actions were consolidated and heard together. The Queensland Court of Appeal rejected the fi rst defendant’s argument that his liability for the injury to the plaintiff’s spine had ceased with
<AQ: check word>
Copyright
LexisNexis.
Sample
use
only.
302
the occurrence of the second accident. The court held that it was suffi cient for the plaintiff to show, on the balance of probabilities, that a particular breach of duty had materially contributed to the injury complained of. The plaintiff was not obliged to go further and attempt to disentangle and identify with complete precision the relative contributions of each defendant to the plaintiff’s accumulated injury and loss: applying Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 620. The result was that the plaintiff’s 70 per cent disability was attributed equally to the two defendants: compare Faulkner v Keffalinos (1971) 45 ALJR 80; Baker v Willoughby [1970] AC 467; Joblins v Associated Dairies Ltd [1982] AC 794.
Onus of Proof
12.50 The onus of proof in regard to factual causation is upon the plaintiff and the burden of proof is on the ‘balance of probabilities’. Proof of causation may be established by inference in appropriate circumstances (Betts v Whittingslowe
(1945) 71 CLR 637) and the common law rule of res ipsa loquitur is also relevant in the context of causation in fact: see, for example, TNT Management Pty Ltd
v Brooks (1979) 23 ALR 345; Government Insurance Offi ce (NSW) v Best (1993)
Aust Torts Reports ¶81–210; West v Government Insurance Offi ce (NSW) (1981) 148 CLR 62; 35 ALR 437. See also 11.XX.
12.51 The Ipp Report was critical of what, it argued, was a trend in the High Court whereby, once the plaintiff has established the breach of the duty of care and the foreseeability of the harm, there is a shifting of the onus of proof of some causation issues onto the defendant, citing Bennett v Minister for Community
Welfare (1992) 176 CLR 408 at 420–1 per Gaudron J; Rosenberg v Percival (2001)
205 CLR 434 at 461 per Gummow J; Chappel v Hart (1998) 195 CLR 232 at 240, 257, 273; 156 ALR 517 at XXXXX; Naxakis v Western General Hospital (1999) 197 CLR 269 at 279 per Gaudron J. See also Amaca Pty Ltd (under NSW administered winding up) v Booth; Amaba Pty Ltd (under NSW administered winding up) v
Booth (2011) 283 ALR 461; 86 ALJR 172; Flounders v Millar [2007] NSWCA
238.
12.52 The Ipp Report advocates in Recommendation 29, ‘a legislative restatement of the basic rule that the onus of proof of any fact relevant to causation always rests on the plaintiff’: at [7.36]. In Queensland, this Recommendation is refl ected in s 12 of the Civil Liability Act 2003:
In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
See also Civil Law (Wrongs) Act 2002 (ACT) s 46; Civil Liability Act 2002 (NSW) s 5E; Wrongs Act 1936 (SA) s 35; Civil Liability Act 2002 (Tas) s 14; Wrongs Act 1958 (Vic) s 52; Civil Liability Act 2002 (WA) s 5D.
12.53 Furthermore, the Report goes on to recommend that, where an issue in fact is what the plaintiff would have done if the defendant had not been negligent, then, for the purposes of factual causation, this issue should be decided subjectively. The issue, nevertheless, should be decided without the benefi t of <AQ: pinpoint to come>
Copyright
LexisNexis.
Sample
use
only.
303
the plaintiff’s testimony as to what he or she would have done had the defendant not acted negligently. This devaluing of the plaintiff’s testimony is consistent with the approach of the High Court in, for example, Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934, but goes further in entirely disallowing the plaintiff’s evidence in this regard.
See Civil Law (Wrongs) Act 2002 (ACT) s 45; Civil Liability Act 2002 (NSW) s 5D; Civil Liability Act 2002 (Qld) s 11; Wrongs Act 1936 (SA) s 34; Civil Liability Act 2002 (Tas) s 13; Wrongs Act 1958 (Vic) s 51; Civil Liability Act 2002 (WA) s 5C. There is no equivalent in the Northern Territory legislation.
4 Scope of Liability
12.54 If factual causation is established, the third stage in proving the damage element in negligence requires a consideration of the scope of the defendant’s liability.
12.55 At common law, this stage is referred to as either ‘remoteness’ or ‘causation in law’. It involves the consideration of normative issues which, theoretically at least, is restricted to whether the kind of damage suffered by the plaintiff was a reasonably foreseeable consequence of the defendant’s act or omission.
12.56 Under the civil liability legislation that it must be appropriate for the scope of the negligent person’s liability to extend to the harm so caused’: see 12.XX. The legislation further provides:
For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.
See Civil Law (Wrongs) Act 2002 (ACT) s 45(4); Civil Liability Act 2002 (NSW) s 5D(4); Civil Liability Act 2003 (Qld) s 11(4); Wrongs Act 1936 (SA) s 34(4); Civil Liability Act 2002 (Tas) s 13(4); Wrongs Act 1958 (Vic) s 51(4); Civil Liability Act 2002 (WA) s 5C(4). There is no equivalent in the Northern Territory legislation. 12.57 The civil liability legislation places no theoretical restrictions on the range of normative issues which may be considered when determining the appropriate extent, or scope, of a defendant’s liability. The only requirement is for the court to explain whether or not, and why, the negligent party should be held liable for the plaintiff’s damage. Recommendation 29 of the Ipp Report5 states:
‘Scope of liability’ covers issues, other than factual causation, referred to in terms such as ‘legal cause’, ‘real and effective cause’, ‘commonsense causation’, ‘foreseeability’ and ‘remoteness of damage’.
See also the Ipp Report at [7.43] where reference is made to intervening acts that break the chain of causation.
5. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at <http://revofneg.treasury.gov.au>.
<AQ: reword> ◆
Copyright
LexisNexis.
Sample
use
only.
304
12.58 Therefore scope of liability, either under the common law or the legislation, involves a consideration of:
❖ whether the damage is too remote in law;
❖ whether there were any intervening acts; and
❖ whether the defendant’s breach was the legally signifi cant cause of the damage.
12.59 The scope of the defendant’s liability will not always involve deep analysis.
In Zanner v Zanner [2010] NSWCA 343 at [66] (see 12.XX) the appellant argued
that ‘it was not appropriate for the scope of the fi rst appellant’s liability to extend to the harm caused to the respondent as a consequence of his conduct’. The court disagreed, however, Allsop P stating (at [12]):
This case does not demand any great agonising over the application of ss 5D(1)(b) and (4). All relevant considerations that inform the content of the appropriate scope of the negligent person’s liability and responsibility point to a positive conclusion as to causation and liability here. Injury to the mother was entirely foreseeable should negligence occur. The scope of the risk of harm protected by the duty and created by the breach included injury to the mother. The injury was not coincidental to the breach. It was the direct and immediate consequence of the negligence. The son in the car ran over his mother. The content of the duty and the attenuated standard of care were directed to the exercise of care to avoid injury to the mother in the very manner that occurred. There was no intervening act of a third party or of an abnormal event. The only other causal factor was the negligence of the person (the mother) to whom the duty was owed. There is no reason why the appropriate apportionment of respective responsibility is not best allocated through contributory negligence. Common sense would attribute the mother’s injury to the negligence of her son, as well as to her own negligence in putting herself in that position.
In Finch v Rogers [2004] NSWSC 39 at [148] Kirby J simply said:
I further believe that it is appropriate that the scope of the defendant’s liability extend to the harm so caused (s 5D(1)(b)). The consequences were in each case a foreseeable result of the breach.
See also French v QBE Insurance (Australia) Pty Ltd (2011) 58 MVR 214 at [55] where Fryberg J stated:
I do not understand s 11(4) [Civil Liability Act 2003 (Qld)] to require a trial judge to reinvent the wheel in every case. I fi nd no obligation in that provision to reconsider by way of normative analysis whether or not and why responsibility for the harm infl icted in this motor vehicle accident should be imposed on that driver. In an ordinary case it suffi ces for the purpose of deciding the scope of liability to observe that liability should be imposed because the case law requires it.
Remoteness of Damage
12.60 A defendant will not be liable in negligence if the damage suffered by the plaintiff is too remote in law, that is, if it was not the reasonably foreseeable consequence of the defendant’s breach. Prior to the development of reasonable
Copyright
LexisNexis.
Sample
use
305
foreseeability, the plaintiff’s damage had to be the direct consequence of the negligence: Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560.
12.61 The reasonable foreseeability test in the context of the damage element of a negligence action provides that the damage is compensable if there was a real risk that the kind of damage suffered by the plaintiff could result from the defendant’s negligence.
12.62 The test of whether it was a real risk is whether it was a risk which would occur to the mind of a reasonable person in the defendant’s position, and would not be brushed aside as far-fetched or unlikely to occur: Overseas Tankship (UK)
Ltd v Miller Steamship Co Pty Ltd (Wagon Mound (No 2)) [1967] AC 617 at 641
per Lord Reid.
12.63 It is not necessary to foresee the chain of events leading to the damage, nor the exact type of damage nor the extent of the damage: Chapman v Hearse (1961) 106 CLR 112 at 120–1; Sydney Water Corporation v Turano (2009) 239 CLR 51; 260 ALR 20 at [46]. The High Court discussed the reasonable foreseeability test for remoteness in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1971] ALR 253, where Windeyer J said (at CLR 402; ALR 264):
Foreseeability does not mean foresight of the particular course of events causing the harm. Nor does it suppose foresight of the particular harm which occurred, but only of some harm of a like kind. That is well established by many cases, including
Chapman v Hearse [(1961) 106 CLR 112] and Hughes v Lord Advocate [(1963) AC 837]. This comfortable latitudinarian doctrine has, however, the obvious diffi culty that it leaves the criterion for classifi cation of kinds of harm undefi ned and at large.
12.64 Over four decades later, there is still no more precise defi nition as to meaning of reasonable foreseeability in the context of the damage element. As Spigelman CJ, with whom Sheller and McColl JJA agreed, commented in New
South Wales v Godfrey (2004) Aust Torts Reports ¶81–741 at [81]:
There is no authoritative exposition of the principle of remoteness. The case law affords no clear guidance on the application of the principle. It may be impossible to do so.
The ‘egg-shell skull’ rule
12.65 It is in this context of reasonable foreseeability that the ‘egg-shell skull’ rule falls to be considered. The rule provides that a tortfeasor must take the plaintiff as found: Smith v Leech Brain & Co Ltd
