Causation and Remoteness of Damage

1. s.5E onus of proof on Ptf on BoP – codified BoP by CL (Gett) and causation (Coca Cola)2. s.5D(1)(a) of CLA – The negligence was a factual causation “necessary condition”

(‘but for’ test, common sense test, policy considerations; March v Stramare)o But for (March v Stramare)o Common sense (Medlin)o Actus novus interveniens (Champman v Herse)

In order for D to be held liable to P for negligenceo P must show causal connection between D’s conduct and

damage suffered by P. o Causation is a question of fact – look at the facts of the case

Only element where reasonable foreseeability is not used.

But for test – would P have been injured BUT FOR defendents negligence?- Barnet – Husband would have died anyway- March v Stramare – But for test cannot be exclusive criterion for causation – limited to where

there is one identifiable cause. Must be combined with value judgements and policy considerations + common snse

Common sense – is it common sense that P would not be injured if it weren’t for D’s neg?- Medlin – D was responsinle for his loss of earning capacity despite him voluntarily retiring

Novus Actus interveniens – itnerventiong unrelated act breaks causal link between D’s neg and P’s loss- Volutnary act by P or third party

- Own negligenceo Chapman v Hearse: argued that H’s negligent driving severed Chapman’s earlier

negligence and Dr Cherry’s death. Held: rejected argumento March v Stramare: look at risks created by D’s negligent act, then look at whether

2nd negligence is the “very risk” likely to materialise “in the ordinary course of things”.

- Medical treatmento Mahony v Kruschich

Material cause

Multiple causes- Subsequent injury

o Baker Held: D1’s damages not reduced by D2, but not liable for additional

loss.o Jobling

Did not apply Baker – D may rely on “vicissitudes” principle to reduce damages in place as they would have without D’s tort.

Where later even it not tortious e.g. illness -

According to CLA s 5E, plaintiff bears onus of proof of causation.• At common law, it is established that the plaintiff need to show, On the balance of probability, (more probably than not): Tabet v Gett , the defendant’s conduct was “a” cause of the plaintiff’s damage: Coca Cola Amatil (NSW) v Pareezer➡It is not necessary to be the sole cause of action, nor it is relevant to which negligence occurred first (if there are two or more cause of actions): Baker v Willoughby

➡However, if the supervening event is an act of god or natural illness, the defendant’s liability may be reduced or negatived by this kind of vicissitude of life: Jobling v Associated Daries

Relevant Legislations 5D(1)(a) talks about factual causation, in order to prove the defendant’s act is a cause of the plaintiff’s injury, the plaintiff needs to prove the factual causation is a necessary condition of the injury, what is reflected in the common law as the “but for” test. March v E & MH Stramare; Strong v Woolworths• But for the defendant’s negligence, the plaintiff would not .....(facts)s 5D(3)(a) The test of what the plaintiff would have done is subjective.s 5D(3)(b) The plaintiff's evidence as to what they would have done is inadmissible unless it is not in their own interest• Chappel v Hart is not allowed under this provisions 5D(2) Exceptional case if you cannot get over the hurdle of 5D(1)• Need to establish why and whether it is reasonable to impose liability on the defendant

Some general considerations

Causation in fact and remoteness of damage in law as distinct questions. The principles of remoteness of damage as a policy limitation on the liability of the defendant for damage caused to the plaintiff.

• Before a case can be left to the jury, the plaintiff must discharge the prelim task of submitting direct or circumstantial evidence which tends not only to show how the accident happened but which also permits a reasonable finding that the defendant's conduct had some effect in producing the injury

• The task of the plaintiff is to establish a prima facie case that, on the balance of probabilities, the fault of the defendant caused or materially contributed to the injury, one measure being whether the defendant failed to take a step which more probably than not would have prevented or minimized the damage

• While continuing to maintain that the legal burden of proving causation remains throughout the proceedings on the plaintiff, the HC nonetheless appears to have accepted that the evidentiary onus may shift, in the sense that the plaintiff has proved a breach of duty by the defendant and can establish that the breach increased the risk of injury and that risk eventuated, the defendant will be held liable in the absence of proof of an alternative cause

• Every occurrence is the result of many causal conditions which are jointly sufficient to produce it. For any kind of occurrence there may be more than one complex set of conditions, each set of which is jointly sufficient to produce that occurrence.

• To determine the factual cause of an injury is but the first step in any causal analysis. Once this has been ascertained, the need arises to determine for which consequences of the tort a defendant is answerable, or as it is often put, to decide whether the injury or damage is not too remote a consequence

• With increasing frequency since The Wagon Mound, the court says that the defendant may be liable even though he or she could not envisage the precise set of circumstances which produced harm of the foreseeable kind. What must be foreseen is injury of a given description - the genus - rather than the precise injury which occurred - the particulars

If plaintiff established that defendant owed him/her duty of care and there was a breach of that duty is there a causal connection between the defendant's breach of duty and the plaintiff's injury?

Causation poses an interrelationship of its own. There is a causal connection with requirement that there be causation proven and the relevant head of damages that is being sought. Connection between causation, damage and damages. Test for causation is NOT REASONABLE FORESEEABILITY.

Causation

a) A question of fact; "but for" test; common sense principles; value judgements; policy.

Barnett v Chelsea Hospital [1969] - ARSENIC

• Mr Barnett was a night watchman at the Chelsea College of Arts and Sciences. He was on duty on New Years Eve. Hit over the head with iron bar. Taken to hospital St Stevens operated by Chelsea Hospital

• Told he would need to return at 9.45am on new years day, no doctor to perform x-ray that night. The night nurse emphasized that would be good idea if he stayed and waited but Mr Barnett didn't want to lose money so he returned to job by about 5am.

• Having done their inspection the three night watchmen sat down to have a thermos of tea. They began to vomit violently. At 8am things got so bad he went back to St Steven's hospital. The nurse assumed that he being a working class person was drunk and suggested he stay at hospital at 9.45am for appointment with x-ray. He didn't want to do that so he left.

• Failed to come back for appointment because when went back to job kept vomiting. At 1pm he was found on a bench at the College, found passed out and ambulance was called. Went to hospital and declared dead

Mr Barnett and two watchmen had been poisoned with arsenic

• Mrs Barnett brought proceedings - was hospital negligent in failing to treat Mr Barnett?• Clear this case not concerned with issue of duty. Hospital owed duty to diagnose and to treat

Mr Barnett. (Rogers)• This wasn't a case about breach either - clear on any analysis that hospital breached duty to Mr

Barnett and failed to investigate problem properly.• Not sufficient for night nurse to conclude he was drunk. Further investigations given severity

duration of symptoms were needed to go into• But causation? Causal connection with hospital's breach of duty and injury suffered by Mr

Barnett (his death). CAUSATION IS A QN OF FACT.

• The most relevant fact - arsenic poisoning would require treatment within 1-2 hours. He ingested arsenic at 5am, didn't present to hospital of 8am. This meant he was beyond point where could have been rescued. Even though there was a duty and had been breached, no causal connection with breach of duty and injured suffered by him (death).

o By time he went to receive substandard treatment he was already going to die. If he had turned up to hospital in 1-2 hours hospital may not have been liable as would have needed time to diagnose he was poisoned by arsenic

• NY Day - might think drunkenness was first point of call, before look at arsenical poisoning Hospital still had time to diagnose that which had been wrong• Simply because duty/breach is not determinative if defendant liable to plaintiff. Has to

prove causal connection with defendant's duty/breach

Causation – March and Strumere

Medlin v State Government Insurance Commission (1995) - PROFESSOR

COMMON SENSE TEST

Principle of Law: The causal inquiry is essentially one of fact to be resolved as a matter of common sense and experience.

By reference to these criteria, the negligence of a tortfeasor which caused the plaintiff personal injury remained a cause of the plaintiff's financial loss after his post-injury voluntary early retirement.

Facts:• Medlin was a Professor of philosophy at a University. He was injured in a motor accident at 56

years of age by the negligence of a driver insured by the defendant (State Gov Insureance). The plaintiff took voluntary early retirement soon after turning 60 even though he was not due to retire until 65.

• The trial judge, Debelle J, awarded him an amount of damages which did not include any component for loss of earning capacity for the four years plus remaining of his employment

• He voluntarily retired and therefore was not given loss of earning capacityo The plaintiff's appeal claiming for that component of loss of earning capacity was

dismissed by the Full Court of the Supreme Court of South Australiao Appealed to High Court which allowed the appeal

Was the decision by Prof Medlin a voluntary act on his part which broke the chain of causation between the insurer responsible for the vehicle in the motor accident and damage done to Mr Medlin?

Held• For the purposes of the law of negligence, the qn whether the requisite causal

connection exists between a particular breach of duty and a particular loss of damage is essentially one of fact to be resolved, on the balance of probabilities, as a matter of common sense and experience

o The "but for" test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test

• If, in such a case, it can be seen that the necessary causal connection would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss of damage

o Nor can the question of causation of damage in a negligence action be automatically answered by classification of operative causes as "pre- eminent" or "subsidiary"

o Regardless of such classification, two or more distinct causes, without any one of which the particular damage would not have been sustained can each satisfy the law of negligence's common sense test of causation

o This can be most obviously so in a case where a 'subsidiary' cause operates both directly as a cause of the particular damage and indirectly as a contributing component of a 'pre-eminent' cause

• In these circumstances, the relevant question was not whether the plaintiff 'should' have continued in his University post or whether his decision to retire was not 'reasonable' but whether, in the context of what was reasonable between the plaintiff and the plaintiff's employment was the product of the plaintiff's loss of earning capacity notwithstanding that it was brought about by his own decision to accept voluntary retirement

o Any question of reasonableness should be framed in terms of what is reasonable as between the plaintiff and the defendant in the context of assessing damages for negligence rather than as a question of whether the plaintiff acted reasonably or unreasonably in resigning his post

McHugh J: "If the plaintiff had not been injured, he would have had the capacity to pursue his research work while carrying out his other duties. The plaintiff’s early retirement was, therefore, the result of his accident-related complaints and causally connected with the defendantIs negligence in the 'but-forI sense."

Appeal allowed.

So - causal connection with injury and loss of earning capacity. Simply because the decision was voluntary does not mean there was a break in the chain of causation (McHugh J: "It does not seem to me the matter in this case whether the plaintiff’s act of early retirement is attached as a voluntary act that was a novus actus interveniens or as a failure to mitigate loss. His retirement would be a novus actus interveniens or a failure to mitigate loss only if it was unreasonable in all of the circumstances"). But for the car accident he would not have found his job harder to do. Early retirement was not unreasonable because it was caused by the defendant's negligence.

Need to establish causal connection with each head of damages, and shows the difficulty that courts have in seeing if intervening acts break the chain of causation.

March v E & MH Stramare (1991) 171 CLR 506 – FRUIT TRUCK

BUT FOR TEST

Principle of Law: Causation is determined by applying the 'but for' test as well as common sense principles to the facts of the case. Value judgement and considerations of policy also have a role to play in the context of causation.

Facts:o The appellant sued to recover damages for personal injuries sustained when the offside of the

front of his motor vehicle struck the nearside rear of the tray of a truck, owned by the 1st

respondent, parked along the centre line of Frome St, Adelaideo The second respondent had parked the truck in that position for the purpose of loading it

with large wooden bins containing fruit and vegetables from premises in Frome street where the first respondent carried on business as a wholesale fruit and vegetable merchant

o The appellant was travelling south in the lane closest to the centre line of the road, there being three southbound lanes

o The rear of the truck, with its parking/hazard lights illuminated, faced the southbound traffic and about one-half of the width of the truck projected into the lane in which the appellant was travelling

o The primary judge (Perry J) found that the appellant was intoxicated at the time to such an extent that his ability to judge speed (including his own speed) and distance, his eye functions, his coordination and reaction times, and his vision while attending to the controls of the car were impaired so substantially that:

o Although the parking and hazard lights of the truck were illuminated, the second respondent should have appreciated that the parked vehicle might, in some circumstances, constitute a danger to oncoming vehicles

o Accordingly, the second respondent was negligent in parking the truck in the middle of Frome Street and the appellant was guilty of contributory negligence in driving when his faculties were impaired by alcohol, in driving through the preceding intersection of Frome Street and rundle Street at a speed exceeding 60km/h, in failing to see the truck and in failing to veer past the truck

o Liability was apportioned 70% against appellant and 30% against the respondentso In allowing the appeal, the majority in the Full Court (Bollen and Prior JJ) held that the second

respondent's negligence was not causative of the appellant's injuries, the negligence of the appellant being the 'real cause'

Held:

Mason I• In law, problems of causation arise in the context of ascertaining or apportioning

legal responsibility for a given occurrenceo Thus a person may be responsible for damage when his or her wrongful conduct is

one of a number of conditions sufficient to produce that damage• A wrongdoer is liable for the consequences of his or her wrongful conduct which have

been variously described as 'direct,' 'natural and probable,' 'direct and natural,' when the wrongful act is the 'proximate cause,' or the 'real effective cause'

• In Chapman v Hearse, the HCA said the term reasonably foreseeable is not a test of causation; it marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act

• In ordinary circumstances, the plaintiff was defeated by the defence of contributory negligence when his or her negligence was an effective cause of his or her injury, notwithstanding that the defendant's negligence was also an effective cause of that injury

• According to the 'last opportunity' or 'last chance' rule, the plaintiff was entitled to recover, despite his or her own negligence, if the defendant had the last opportunity of avoiding the accident but failed to do so due to negligence. The result achieved by the application of the rule was explained in the language of causation: the defendant's later

negligence broke the chain of causation so that the defendant's negligence was left as the effective cause of the plaintiff's injury

o The last opportunity rule served only to confuse even further the legal concept of causation because it did not apply as between co- defendants, so that a failure by one defendant to avail himself or herself of a last opportunity to avoid the accident did not prevent the negligence of the other defendant from being the effective cause of the plaintiff's injury

o Court has largely rejected this rule – the ‘last chance rule’• The end result of the apportionment legislation was not only to abolish the defence of

contributory negligence but also the last opportunity rule• The law's recognition that concurrent or successive tortuous acts may each amount to a

cause of the injuries sustained by a plaintiff is reflected in the proposition that it is for the plaintiff to establish that his or her injuries are "caused or materially contributed to" by the defendant's wrongful conduct

o The causal connection is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent. But it is often very difficult to demonstrate what would have happened in the absence of the d's negligent conduct

• Common law tradition is that what was the cause of a particular occurrence is a question of fact which 'must be determined by applying common sense to the facts of each particular case'

• The 'but for' test, applied as a negative criterion of causation, has an important role to play in the resolution of the question

o It gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury

o The application of the test proves to be either inadequate or troublesome in various situations where there are multiple acts or events leading to the plaintiff's injury

• The lesson of experience, namely that the test, applied in an exclusive criterion of causation, yield unacceptable results and results which it yields must be tempered by making of value judgments and infusion of policy considerations

• That in itself is something of an irony because the proponents of the 'but for' test have seen it as a criterion which would exclude the making of value judgments and evaluative considerations from causation analysis

• The 'but for' test does not provide a satisfactory answer in those cases in which a superseding cause, described as a novus actus interveniens, is said to break the chain of causation which would otherwise have resulted from an earlier act

o The fact that the intervening action is a deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct

o In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk

• It has been said that the fact that the intervening action was foreseeable does not mean that the negligent defendant is liable for damage, which results from the intervening action .. But it is otherwise if the intervening action was in the ordinary course of things the very kind of thing likely to happen as a result of the defendant's negligence

• As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a suspending cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from negligence of plaintiff or a third party and that injury occurs in the ordinary course of things

o In such a situation, the defendant's negligence satisfies the 'but for' test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it

• In these circumstances, the respondent's negligence was a continuing cause of the accident. The chain of causation was not broken by a novus actus. Nor was it terminated because the risk of injury was not foreseeable, on the contrary, it was plainly foreseeable

Deane J• It is clear that the second respondent was in a relationship of proximity with other users

of the road on which he left the truck. That relationship gave rise to a duty to take reasonable care to avoid foreseeable injury to such other road users. That relationship and that duty of care were not confined to persons who were careful and sober but extended to all foreseeable users of the road, including bad and inattentive drivers and those whose faculties were

impaired either naturally or by reason of the effect of alcohol• The case is one in which there was fault on both sides and in which, in the context of

apportionment legislation, the accident must be seen as the result not only of the negligence of the appellant in driving his own vehicle but also of the negligence of the second respondent in parking the truck in breach of the duty of care which he owed a class of persons of which the appellant was a member

• Causation arises in the context of the attribution of fault or responsibility whether an identified negligent act or omission of the defendant was so connected with the plaintiff's loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it

o The 'but for test' may well be a useful aid in determining whether something is properly to be seen as an effective cause of something else in that sense. There are however reasons precluding its adoption as a comprehensive definitive test of causation

1. First, the clear weight of authority is against the substitution of such a formularized test of causation

2. Secondly, unqualified acceptance of the 'but for' test as even a negative or exclusionary test of causation for the purposes of the law of negligence would lead to the absurd and unjust position that there was no 'cause' of an injury in any case where there were present two independent and sufficient causes of the accident in which injury sustained

3. Thirdly, the mere fact that something constitutes an essential condition 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/common sense

o It is true that, in the context of apportionment legislation which gives the latitude necessary to enable the relief to be fairly adjusted to fit the circumstances, the courts will be unlikely to deny causation in any case where the fault of a defendant contributed to an accident

o Nonetheless, the question whether conduct is a 'cause' of injury remains to be determined by a value judgement involving ordinary notions of language and common sense

McHugh J• A person may be causally responsible for damage even though his or her act or omission

was one only of the conditions or relations sufficient to produce the damageo If the damage would have occurred notwithstanding the negligent act or omission, the

act or omission is not a cause of the damage and there is no legal liability for it• When the damage suffered by a plaintiff would not have occurred but for negligence on the

part of both the plaintiff and the defendant, a conclusion that the defendant's negligence was not a cause of the damage cannot be based on logic or be the product of the application of a scientific or philosophical theory of causation

o It has to be based upon a rule that enables the tribunal of fact to make a value judgement that in the circumstances legal responsibility did not attach to the defendant even though his/her act or omission was a necessary precondition

• Such a rule is concerned only with the question whether a person should be held responsible for an act or omission which ex hypothesi was necessarily one of the sum of conditions or relations which produced the damage .. Further.. if the 'but for' test is applied in a 'practical common sense' way it enables the tribunal of fact, consciously or unconsciously, to give effect to value judgments concerning responsibility for the damage.

• If the 'but for' test is applied in that way, it gives the tribunal an unfettered discretion to ignore a condition which was in fact a precondition of the occurrence of the damage

• In cases with expert evidence called to explain a connection with an act or omission/occurrence of damage - educative effect of expert evidence makes an appeal to commonsense notions of causation largely meaningless or produces findings concerning causation which would often not be made by an ordinary person uninstructed by expert evids

• To hold a person liable for damage resulting from a set of conditions or relations simply because his or her wrongful act or omission was a necessary condition of the occurrence of that damage would be an unacceptable extension of the boundaries of legal liability in some cases

• The preferable course is to use the causa sine qua non test as the exclusive test of causation

o One obvious exception to the rule must be the unusual case where the damage is the result of the simultaneous operation of two or more separate and independent events, each of which was

sufficient to cause the damageIn general however ‘the but for’ test should be seen as the test of legal causation. Any other rule limiting responsibility for damage caused by a wrongful act or omission should be recognized as a policy-based rule concerned with remoteness of damage and causation

Appeal allowed.

HC EMPHASISED THAT PURPOSE OF ASKING TEST OF CAUSATION AND TEST TO BE APPLIED ARE PRAGMATIC. WE WANT TO ATTRIBUTE LIABILITY AND FIX PEOPLE TO RESPONSIBILITY, DIFF TO SCIENCE/PHILOSOPHY.

Last chance/opportunity rule: who had the last chance or opportunity to avoid harm occurring to the plaintiff?

• If the defendant did - they are causally responsible

• Con neg acts as a complete defence: this has now changed by way of statute. Have apportionment

'But for' test debate with Deane andMcHugh - can it be the exhaustive test? McHugh

claims it can, Deane/Mason want another test and point put the limitations.

Strict application - p could fail to prove that wholly responsible for damage suffered. Also multiple causes. Mason/Deane - preferred view of HC at CL is the 'common sense test.' It is broad and diffusive. Whether as a matter of fact can be said that normative inquiries also play a part. Not asking if d is liable, law answering the question: SHOULD the d be held causally responsible for the d's harm caused to the plaintiff?

How do we determine the defendant's liability? Is the defendant causally responsible or is the defendant the sole cause of the harm? Our system recognizes multiple tortfeasors can be the sole cause of harm (weaker) - you can be causally responsible if you are a cause/contributing factor. Plaintiff can then recover 100% of damages against that defendant or open to choose one defendant or another.

Chappel v Hart (1998) 195 CLR 232 - ESOPHAGUS

Principle of Law: The negligence of a medical practitioner in failing to warn a patient of an inherent risk in a surgical procedure may be treated as a cause of the injury suffered by the patient when the risk materializes.

Facts:• Respondent (P), Mrs Hart, sued the appellant (D), Dr Chappel, a medical practitioner, in respect of

an injury sustained by her during surgery, on the basis of his failure to warn her of the risk of such an injury.o Throat surgery. She had a degenerative condition which was going to get worse and required

an operation so she decided to do it sooner rather than later. Dr Chappel was recommended to her

• When surgery was conducted the esophagus was perforated. No suggestion that there was poor/unreasonable treatment on the part of Dr Chappel. He exercised all due skill and care. But due to the delicate nature of the surgery, there was a risk of perforation to the esophagus. It led to an infection taking hold and her losing most of her voice.o Risk was inherent in procedure, nothing could have been done to avoid the risk of

perforation.• Surgeon failed to warn her of the material risk inherent in procedure and she said that if she

had been warned she would have delayed the surgery to a later time to secure the services of the best surgeon

Was there a causal connection with the Failure to warn and harm suffered?

Held:

Gaudron J• The argument, which asserts that the harm suffered by Mrs hart resulted from the

"random risk" of infection which eventuated and her "voluntary willingness to undertake that risk" must be rejected.

o It treats the infection which occurred as a supervening event breaking the chain of causation which would otherwise begin with Dr Chappel's failure to inform Mrs Hart of the possible consequences in the event of perforation and subsequent infection

o It is contrary to common sense to treat part of the very risk which called the duty into existence as a supervening event breaking the chain of causation beginning with the breach of that duty

Gummow J Here, the injury to Mrs Hart occurred within an area of foreseeable risk In the present case, the obtaining of adequate advice as to the risks involved was a

central concern of Mrs Hart in seeking and agreeing to undergo the surgical procedure in question

The chain of causation can be seen from the facts found to have intervened between the negligent omission of the appellant and the injuries sustained by the respondent

Difficult for someone in failure to warn cause says no causal connection when what failed to warn about was the risk that was materialized.

Kirby J They were risks inherent in the procedure, not wholly avoidable even by the most skilful and

experienced of surgeons There is a duty imposed on a medical practitioner to inform a patient about material

risks involved in treatment. A risk is material if a reasonable person, the circumstances, would attach significance to it" (Rogers v Whitacker)

Once Mrs Hart showed the breach and the damage which had immediately eventuated, an evidentiary onus lay upon Dr Chappel to displace the inference of causation which thereupon rose

This was not an ordinary patient. It was inquisitive, persistent and anxious one who was found to have asked a particular question to which she received no proper answer.

o Had a proper answer been given, as the law required, it was found that she would not have undergone the operation at the hands of Dr Chappel when she did. It is virtually certain then, that she would not have suffered mediastinitis at all. She would not have been injured. She would not have been obliged to bring her case before the courts. She therefore adequately proved causation.

There was a causal connection between defendant's failure to warn of a risk of harm and the plaintiff's harm because what was failed to be warned about was the risk that was materialized.

Appeal dismissed.

Tabett v Gett (2010) – BRAIN TUMOR

(cannot circumvent requirement to prove causation of damage on the balance of probabilities by proving an increased chance of less than 50%)

Facts1. The appellant was admitted to hospital again when he suffered vomiting and headaches on 11 January 1991.2. She had been admitted to hospital not long ago from varicella.3. A CT scan taken on 14 January revealed that she had a large brain tumour.4. The damage contributed to the severe, irreversible brain damage and consequently disability which the appellant now suffers.

5. The appellant claimed respondent pediatrician breached duty by failing to order CT scan at particular earlier time, for which she might had been deprived of the chance of a better outcome by reason of the delay in the treatment she could have received.6. Evidence showed that breach caused loss of 40% chance of better outcome.

HeldLiability based on breach of duty of care without proven loss or harm will not suffice. The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. “More probable” means no more than than, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.• To accept that a plaintiff ’s loss of a chance of a better medical outcome, where the breach at best caused the loss of a less than 50% chance of a better outcome, was a form of actionable damage would shift the balance struck in the law of negligence between competing interests of claimants and defendants.• Judgment for defendant.

Strong v. Woolworths Limited [2012] - CHIP

it will often be enough for the issue of causation to be decided adversely to a defendant if it is open to the court to find on the balance of probabilities that the plaintiff’s injury would not have occurred had the defendant complied with its duty of care. 

The decision is an instructive example of how the courts decide issues of causation as questions of fact based on the balance of probabilities and how the key question in any inquiry into causation remains whether it was more probable than not that the defendant’s breach was causative of the plaintiff’s loss.

Facts

1. The respondent, Woolworth Ltd operated a Big W in a shopping centre at Taree.2. On a day in late September 2004 at approximately 12:30 PM, the appellant,Strong, slipped and fell on a hot chip outside the Big W store, in an area for which Woolworths was responsible and close to a food court.3. Strong suffered a serious spinal injury as a result of her fall.4. At the time of the injury, Strong was already disabled, having had her right leg amputated above the knee, and walked with the aid of crutches.5. Strong's injury occurred when one of her crutches made contact with the hot chip.6. Trial was for Strong, appeal reversed the decision of the trial. NSWCoA held for Strong.

CoA

The principles governing the determination of causation in a claim for negligence in New South Wales are set out in s 5D of the Civil Liability Act 2002 (NSW).

Section 5D of the Act relevantly requires that the negligence was a necessary condition of the occurrence of the harm ("factual causation") and that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability").

The Court approached the causation question on the basis that reasonable care in the circumstances required periodic inspection and necessary cleaning of the sidewalk sales area at 15 minute intervals throughout the day. The Court found that the likelihood was that the chip had been deposited at lunchtime. On that basis, the Court considered that it could not be concluded that, had there been a dedicated cleaning of the area every 15 minutes, it was more likely than not that the appellant would not have fallen.

Held

HC

The primary issue on appeal to the High Court was the correctness of the Court of Appeal's conclusion on causation. The High Court held by majority that, in the circumstances, it was an error for the Court of Appeal to hold that it could not be concluded that the chip had been on the ground for long enough to be detected and removed by the operation of a reasonable cleaning system. The evidence did not permit a finding of when, in the interval between 8.00am and 12.30pm, the chip was deposited in the sidewalk area. Given this, the probability was that it had been on the ground for more than 20 minutes prior to the appellant's fall. On the balance of probabilities, therefore, the appellant would not have fallen but for Woolworths' negligence.

b) New act or factor intervening (“novus actus interveniens”)

Chapman v Hearse (1961) 106 CLR 112

• Can Chapman recover contribution/indemnity from Hearse? Is there a duty of care owed to Dr Cherry? There was a duty of care because if drive negligently, not only reasonably foreseeable you will kill or injure people but that they will need rescue

o But whether in terms of that duty to rescue extends to negligent conduct? Was reasonable foreseeable that if you invite rescue by a rescuer, you might expose that rescuer to danger and that danger is reasonably foreseeable might occur to the negligence of others

• Was there a causal connection with the injury caused to Dr Cherry by Chapman and by Hearse? Chapman said that Hearse's driving broke the act. Hearse then should completely indemnify Chapman for his liability to the Cherry estate

• HC found that the negligent driving was not a new act intervening• ("novus actus interveniens") to absolve Chapman of liability• BUT FOR Mr Chapman's negligent driving, Dr Cherry would not have been there helping people.

Hearse's negligent driving was not a new act intervening which broke the original chain of causation

o Chapman's negligent driving was not negatived by Hearse's negligent driving

"When the question is whether damage ought to be attributed to one of several'causes' there is no occasion to consider reasonable foreseeability on the partof the particular wrongdoer unless and until it appears that the negligent act or omission alleged

has, in fact, caused the damage complained of. As we understand the term 'reasonably foreseeable' is not, in itself, a test of causation. It marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act.

Hearse's intervening act was negligentoThe appellant insists that the fact thatHearse's later act was wrongful operated to break the chain of causation between his negligence and

Dr Cherry's death. Why this should be so, however, does not emerge but as far as we can see the submission rests solely upon the general proposition that there should not be imputed to a wrongdoer, as a reasonable man, foreseeability of subsequent intervening conduct which is itself wrongful.

It is impossible to exclude from the realm of reasonable foresight subsequent intervening acts merely on the ground that those acts, when examined, are found to be wrongfulo."

HC is emphatic that reasonably foreseeability is not an aspect of causation. RF marks the limits of causational responsibility so long as that damage is not too remote. RF informs the limiting principle of remoteness which establishes the limits in extent of causal responsibility.

Mahony v J Kruschich (Demolitions) (1985) – DOCTOR EXACERABTED

Principle of Law: A tortfeasor who negligently has caused personal injury to the plaintiff may be liable for the exacerbation of that injury as the result of negligent medical treatment by a third party.

Facts

• A worker sued his employer for damages for personal injuries suffered in an accident which he alleged was caused by the employer's negligence.

The injuries required considerable medical treatment

• The employer, in his cross-claim, sought contribution, pursuant to s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) from Dr Mahony, alleging that the doctor's negligence in treating the worker had caused or contributed to the worker's contributing injuries and incapacities

o S5(1)(c) provides "Where damage is suffered by any person as a result of a tort . (c) any tortfeasor liable in respect of that damage may recover contribution from any other tort feasor who is, or would if sued had been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise"

• Dr Mahony sought to have the cross-claim struck out, on the ground that s5(1)(c) provides for contribution only between tortfeasors who have inflicted 'the same damage.' He argued that this was a case of different damage inflicted at different times and that therefore there should be no contribution. The Supreme Court of New South Wales allowed the cross- claim to stand. Dr Mahony appealed.

• On appeal to the HC, one of the issues was whether the allegedly negligent employer could be liable to the worker for the damage caused by the doctor's alleged negligence in treating him.

Held• A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff's

subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor's negligence

o A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens

• But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone

o Where it is not possible to draw a clear line, the first tortfeasor may be liable in negligence for a subsequent injury and its consequences although the act or omission of another tortfeasor is the more immediate cause of that injury

• Where an injury is exacerbated by the medical treatment, however, the exacerbation may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable. Provided the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need not be regarded as a novus actus interveniens which relieves the first tortfeasor of liability for the plaintiff's subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might negligently be given.

o Some degree of medical negligence in the treatment of an injury may well be a reasonably foreseeable result of the act or omission by which that injury was inflicted, and then no clear line can be drawn to limit the original tortfeasor's liability to exclude the consequences of medical negligence

• However, in the ordinary case, where efficient medical services are available to an injured plaintiff, the original injury does not carry the risk of medical treatment or advice that is 'inexcusably bad' or 'completely outside the bounds of what any reputable medical practitioner might prescribe' or 'so obviously unnecessary or improper that it is in the nature of a gratuitous aggravation of the injury' or 'extravagant from the point of view of medical practice or hospital routine'

• In such a case, it is proper to regard the exacerbation of a plaintiff's condition as resulting solely from the grossly negligent medical treatment or advice, and the fact that the plaintiff acted reasonably in seeking and accepting the treatment or in following the advice will not make the original tortfeasor liable for that exacerbation

Appeal dismissed.

If it is reasonably foreseeable that you injure someone it is reasonably foreseeable that they will receive negligent medical treatment for that injury. K could not say that negligent medical treatment was a NAI for this injury - things that COULD break the chain of causation include. In order for there to be a chain of causation it isn't necessary that there is a second

tortfeasor

Pitt Son & Badgery v Proluefco (1984) 1S3 CLR 644

?

Coca Cola Amatil (NSW) v Pareezer (2006) – VENDING MACHINE

Principle of Law: Tort law requires the plaintiff to establish that the defendant's conduct was a cause of the plaintiff's damage.

Facts: The plaintiff, Mr Craig Pareezer, was a contractor employed by the defendant, Coca Cola Amatil

Pty Ltd, to refill soft drink vending machines and collect the coins which drink buyers had deposited in the machines

While attending to vending machines at Werrington TAFE during daylight and in the presence of witnesses, the plaintiff was attacked and shot five times by a robber described by Young CJ in Eq at [131] as "a person who had no regard for human life and was prepared to take extreme risks for negligible financial gain"

In respect of the injuries, the plaintiff brought a claim in negligence against the defendant, alleging it had failed to take reasonable care for his safety

Held:• Assuming there had been a breach of duty by the defendant in respect of the plaintiff's safety,

e.g., in failing to provide extra training about risk minimization or a different cash collection system, the breach was not a cause of the plaintiff's damage

• In the particular circumstances of the present case, extra training about risk minimization or a different cash collection system would not have averted the plaintiff's damage

• Mason P at [10] observed that the conduct of the robber in the present case had been "particularly opportunistic and random in its viciousness"

• In the result, the NSW CA allowed the defendant's appeal from a decision of Hulme J who had awarded the plaintiff damages of $2.893 mill at trial

*Adeels Palace Pty Ltd v Moubarek (2009) – NO SECURITY

Facts 1. The defendant (appellant), Adeels Palace, carried on a reception and restaurant business on licensed premises.2. On New Year’s Eve, the premises were full of patrons, however, there were no security personnel on the premises.3. An accident occurred on the dance floor, precipitating a fight between a patron and Mr Moubarak, the first plaintiff.4. The patron left the premises but soon returned with a gun with which she shot the first plaintiff, and the second plaintiff who was a random victim unconnected with the earlier incident.5. Both the two victims sustained injuries and sued the defendant in negligence for not providing any or sufficient security at the function.

Held

HC concluded that the evidence at trial did not show that the presence of security personnel would have definitively deterred the re-entry of the gunman.

Consequently, the HCA determined that the evidence did not show that security personnel could or would have prevented re-entry by a determined person armed with a gun and acting irrationally.

Unlike in Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294 – those cases – if you could show that reasonable care provided would have prevented the occurance of the injury.

The effect of this finding by the HCA was that the absence of security personnel at Adeels Palace on the night the plaintiffs were shot was not a necessary condition of their being shot, and thus the "but for" test (of causation) was not satisfied (Cf. s.5D of the Civil Liability Act 2002 (NSW)).

Even if the presence of security personnel at the door of the restaurant might have deterred or prevented the person who shot the respondents from returning to the restaurant, and even if the security personnel on the floor of the restaurant might have been able to intervene in the incident that broke into fighting in time to prevent any injury, neither was reason enough to conclude that this was an 'exceptional case' contemplated by the CLA s5D(2) where responsibility for the harm suffered by the respondents should be imposed on the appellant. To impose that responsibility would not accord with established principles: [Modbury Triangle Shopping Centre Pty Ltd v Anzil]: "[t]he conduct of criminal assailants is not necessarily dictated by reason or prudential considerations."

As s 5D(1) shows, the "but for" test is now to be (and has hitherto been seen to be) a necessary test of causation in all but the undefined group of exceptional cases contemplated by s 5D(2).

c) Supervening and unrelated injury or illness

Baker v Willoughby [1970] – BANK ROBBER

• Mr Baker was run down, injured his left leg and could not work for a period of time. Before his trial could come on he was in a bank and the bank was robbed, in the course of the robbery Baker shot in left leg and as a result had to have left leg amputated

Held- A ruling to defendant would cause a  "manifest injustice"

• The injury he was complaining was loss of capacity because of the injury to his leg and loss of earning capacity but now doesn't have that leg at all

• LAW LORDS AWARE IF THEY GAVE DAMAGES FOR 1964-67 he would be undercompensated, but if they gave him for loss of earning capacity for after his leg was amputated he would be overcompensated

o Wanted to achieve practical justice - if we accept that he might be overcompensated: think if the bank robber was sued (he would say only responsible for loss of earning capacity of a person who had already lost 50% of earning capacity for the injury of their left leg so wouldn't be liable for 100%)

• Not unfair to say he was overcompensated• They wanted to treat Mr W's negligent driving and bank robber's negligence as concurrent causes

for the damage to the leg - concurrent. The bank robber's criminal cause was not a supervening act to relieve him of liability

You have to take your victim as you find them –

Johling v Associated Dairies [1982] AC 794 – BACK INJURY

Principle of Law: Where the defendant negligently has caused personal injury to the plaintiff, a supervening illness affecting the plaintiff (but unrelated to the defendant's negligence) may be taken into account as vicissitude of life negating or reducing the extent to which the defendant's negligence remains a cause of the plaintiff's damage.

Facts• The plaintiff sustained a back injury at work, which rendered him fit for sedentary work only. He

commenced proceedings against his employers, the defendants but in 1976, before the trial, it was discovered he had spondylotic myelopathy which affected his neck and rendered him totally unfit for work.

• This condition was unrelated and would have been dormant at the date of the original accident.• When assessing damages for loss of earnings, the trial judge held that he was bound, on the

authority of Baker v Willoughby [1970] to leave out of account the illness supervening after the accident

• The CA, holdings that Baker v Willoughby was not applicable to a case involving a non-tortious supervening event, set aside the assessment of damages and held that the damages should be reduced to take into account the disability suffered as a result of the disease

• The plaintiff appealed

Are the respondents liable to pay damages for loss of earnings upon the basis of a partial incapacity continuing throughout the period, which, in the absence of the myelopathy, would have represented the balance of the appellant's normal working life, or whether their liability was limited to loss of earnings up to the time when the myelopathy resulted in total incapacity?

Held

Lord Keith of Kinkel• In Baker v Willoughby – supervening conduct was tortious - plaintiff suffered an injury to

his left leg through the defendant's negligence, resulting in a continuing disability which reduced his earning capacity. Before his case came to trial he was shot by a robber in the same leg, which in consequence had to be amputated. House of Lords held that the award of damages for loss of earnings did not fall to be diminished because of later injuries because represented a concurrent cause, along with original injury of disability

o Argued for the respondent (defendant) that the second injury removed the very limb from which the earlier disability had stemmed, and therefore no loss suffered thereafter could be attributed to the respondent's negligence

o CONDUCT WAS TORTIOUS (criminal) - conduct by a human• Baker applied when second act is tortuous• Present case: alleged tortuous supervening act not tortuous and so a different principle should

apply. Illness was a supervening cause that so overwhelmed the first defendant's negligence that he was no longer liable

• Notable feature of Baker is the absence of any consideration of the possible implication of the 'vicissitudes' principle . this principle is to be applied in conjunction with the rule that the court will not speculate when it knows, so that when an event within its scope has actually happened prior to the trial date, that event will fall to be taken into account in the assessment of damages

• The assessment of damages for personal injuries involves a process of restitution in integrum. The object is to place the injured plaintiff in as good as a position as he would have been in but for the accident. He is not to be placed in a better position

o In considering how matters might have been expected to turn out if there had been no accident, the 'vicissitudes' principle says that it is right to take into account events, such as illness, which not uncommonly occur in the ordinary course of human life. If such events are not take into account, the damages may be greater than are required to compensate the plaintiff for the effects of the accident, and that result would be unfair to the defendant

• Majority in Baker were mistaken in approaching the problems common to the cause of a supervening tortuous act and to that of supervening illness wholly from the point of view of causation.

o In the case of supervening illness, it is appropriate to keep in view that this is one of the ordinary vicissitudes of life, and when one is comparing the situation resulting from the accident with the situation had there been no accident, to recognize that the illness would have overtaken the plaintiff in any event, so that it cannot be disregarded in arriving at proper compensation and no more than proper compensation

• It might be said that a supervening tort is not one of the ordinary vicissitudes of life, or that it is too remote a possibility to be taken into account, or that it can properly be disregarded because it carries its own remedy. None of these formulations is entirely satisfactory. The fact remains that the principle of full compensation requires that a just and practical solution should be found. In the event that damages against two successive tortfeasors fall to be assessed at the same time, it would be highly unreasonable if the aggregate of both awards were less than the

total loss suffered by the plaintiffo In order for the P may be fully compensated, it becomes necessary to deduct the award

so calculated from the assessment of the P's total loss and award the balance against the first tort- feasor

• If a non-tortious supervening event is to have the effect of reducing damages but a subsequent tortuous act is not, there may be in some cases be a difficulty in ascertaining whether the event in question is or is not of a tortuous character, particularly in the absence of the alleged tortfeasor. the distinction between tortuous and non-tortious supervening events should not be accepted. The court must simply do its best to arrive at a just assessment of damages in a pragmatical way in the light of the whole circumstances of the case

Appeal dismissed. But they didn't argue that Baker should be or could be overruled.

One of the issues that has bedeviled courts both here and abroad is how to assess the liability of a tortfeasor where the injury or damage that has been caused by that tortfeasor has been compounded by the effect of later but unrelated events which take place in the pre-trial period. One way of approaching the question is to consider whether the supervening event is to be regarded as a vicissitude of life. If so, it must be taken into account as a factor limiting the defendant tortfeasor's liability. Some events are routinely recognized as vicissitudes - illness, unemployment, death, even a widow's remarriage.

• Application of the vicissitudes principle affects mainly the position of the original tortfeasor with the second tortfeasor, other rules come into operation like the notion that the tortfeasor must take the victim as he or she is at the time of the accident

The defendant is not liable for all ulterior harm. In order to establish liability it is necessary to examine the nature of the ulterior harm. If it is such as to break the chain of causation, the original defendant will not be responsible for the ensuing consequences. This is because it is a novus actus interveniens.

Also, damage incurred in rescuing a person imperiled by the act of the defendant is not too remote where possibility of such rescue could have been anticipated. The same damage can be brought about in a factual sense by more than one set of conditions, each sufficient in itself or in combination with other causes - maybe described as concurrent causes. Not all concurrent causes will lead to legal liability; therefore each must be carefully examined in order to ascertain which one of them ought to be regarded as substantive legal cause of the harm. Concurrent causes need not be simultaneous.

SECOND TORTIOUS ACT - BAKER V WILLOUGBY SECOND NATURAL EVENT - JOBLING

Remoteness of damage

D will not be liable for damage which was not R.F. consequence of D’s negligence- Wagon Mound No.1 = abolished Re Polemis – introduced R.F.- Wagon Mound No. 2 = Same as breach of duty – R.F. = Reid LJ – not “Far-fetched”

Kind of damage- Hughes v Lord Advocate

o Manner is irrelevant – only need to show that the kind of burns was foresseable

o Immaterial if more serious than foreseen.

Remoteness as a checkpoint of the scope of the defendant’s liability is defined in s 5D(1)(b)• At common law, reasonable foreseeability of the kind of damage suffered by the plaintiff covers the test of remoteness of damage: The Wagon Mound (No 1), reflects in:➡Policy: Sullivan v Moody; Thompson v Connon➡Common sense: Hughes v Lord Advocate➡Eggshell skull rule: Smith v Leech Brain & Co.➡Novus actus interveniens: Chapman v Hearse

s 5D(4) Whether and why the defendant should be responsible

Overseas Tankship (UK) v Morts Dock and Engineering Co (Wagon Mound (No 1)) [1961] AC 388 - Privy Council

Principle of Law: Reasonable foreseeability of the kind of damage suffered by the plaintiff is the test of remoteness of damage in modern Australian law.

Facts• The defendant (appellant) was the charterer of a vessel named the "SS Wagon Mound." While

it was moored to take in furnace oil, some of the oil spilled into Sydney Harbour due to the carelessness of the defendant. It spread to underneath the nearby Sheerleg's Wharf, which was owned and used by the plaintiffs (respondents) for their ship repair business and where, at the time, their employees were using oxyacetylene welding equipment

• Some cotton waste or debris floating on the oil was set on fire by molten metal falling from the wharf, and the flaming waste in turn set the floating oil alight, either directly or by first igniting a wooden pile coated with oil. An extensive fire then developed which damaged the plaintiff's wharf and equipment

• In their action against the defendant in negligence, the plaintiffs were successful at first instance. The defendant's appeal to the Full Court of the Supreme Court of New South Wales was dismissed and the defendant then appealed to the Privy Council.

Re Polemis rule: where someone liable for negligence, liable for all damage which flowed from that negligence regardless of how unforeseeable. This was replaced with this case.

RE POLEMIS RULE REPLACED

Heldo The raison d'etre of furnace oil is, of course, that it shall burn, but I find the defendant did not

know and could not reasonably be expected to have known that it was capable of being set afire when spread on water

o Apart from damage by fire the respondents had suffered some damage from the spillage of oil in that it had got upon their slipways and congealed upon them and interfered with their use of the slips

o It does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be 'direct.' It is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act

o To demand more of him is too harsh a rule, to demand less is to ignore that civilized order requires the observance of a minimum standard of behaviour

o It is to be asked why a man should be responsible for the natural or necessary or probable consequences of his act, the answer is that it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them

o It has happened over and over again that it was reasonably foreseeable, or alternatively, on the ground that it was naturally or necessary or probable (liability for a consequence)

o If some limitation must be imposed upon the consequences for which the negligent actor is to be held responsible - and all are agreed that some limitation there must be - why should that test be rejected which, since he is judged by what the reasonable man ought to foresee, corresponds with the common conscience of mankind and a test be substituted which leads to nowhere but the never-ending and insoluble probs of causation

o It is no doubt proper when considering tortuous liability for negligence to analyse its elements and to say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the defendant, and consequent damage. But there can be no liability until the damage has been done. It is not the act but the consequences on which the liability is founded.

o Lordships - want to displace the proposition that unforeseeability is irrelevant if damage is 'direct.' In doing so they have inevitably insisted that the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen

o This accords with the general view thus stated by Lord Atkin in Donoghue v Stevenson "The liability for negligence . is no doubt based upon a general public sentiment of moral

wrongdoing for which the offender must pay"o It would be wrong that a man should be held liable for damage unpredictable by a

reasonable man because it was 'direct' or 'natural,' equally it would be wrong that he should escape liability, however 'indirect' the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done

o THUS FORESEEABILITY BECOMES THE EFFECTIVE TEST

R.F. is a limiting principle which limits extent of liability to plaintiff. It is not a test of causation but limited by reference to reasonable foreseeability. If it was not reasonably foreseeable then damage is too remote.

Test for remoteness is reasonably foreseeability (No. 2)

Appeal allowed.

Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617, also a decision of the Privy Council on appeal from NSW arose out of the same incident. The plaintiffs were the owners of two vessels,

o 'Corrimal' and 'Audrey D,' which were undergoing repairs and damaged in the fire. The plaintiffs claimed damages in public nuisance and negligence against the charterer of the Wagon Mound.

o In these proceedings, the evidence and findings were 'substantially different.' In particular, there was a finding that a reasonable person in the position of the chief engineer of the 'Wagon Mound' would have been aware of a real risk of fire after the furnace oil spillage. Although small, it was reasonably foreseeable. As the elimination of the risk involved no difficulty, disadvantage or expense, the charterer of the Wagon Mound was liable for the damage to the plaintiff's vessels. This case confirmed that reasonable foreseeability of the kind of damage suffered by the plaintiff is the test of remoteness of damage in nuisance as well as negligence.

d) Egg shell skull rule

Smith v Leech Brain & Co [1962] – BURNT LIP

Smith was a galvaniser in a factory. Had to watch as various objects inserted into a vat of molten metal. OHS not a primary concern so he was given a sheet of corrugated iron to stand behind and occasionally had to pop head out to check everything going smoothly

Splashes of molten metal and he happened to pop out to cop a lump of molten metal in his lip. He suffered a burn and at the time underlying precancerous cells - the burn accelerated cancer and he died of cancer over a period of 3 years

Wife brought proceedings for compensation to relatives against former employer Reasonably foreseeable that if lump of molten landed on a person he would suffer a burn

but not that they would die in horrible and protractible way from mouth and lung cancer: The was not reasonably foreseeable and damage too remote

'EGG SHELL SKULL RULE' - R.F. that a reasonable person in position of Mr Smith would suffer a burn and if you suffered a burn might be other related consequences. The fact of the burn accelerated underlying condition (intimate connection) - ALL THAT NEEDED TO BE R.F. WAS THE TYPE OF INJURY HE SUSTAINED FROM BURN WAS, JUST SO HAPPENED THAT THE BURN AND ITS CONSEQUENCES MORE SERIOUS THAN FOR AN ORDINARY INDIVIDUAL

Extent of harm suffered was not r.f. but type of harm was - only need to reasonably foresee type of harm, not extent. If person in his position would have suffered a burn Leech brain liable to

Smith's estate as you "find them"

Lord Parker stated:

If a man is negligently run over... it is no answer to the sufferer’s claim for damages that he

would have suffered less injury... if he had not had an unusually thin skull or an unusually

weak heart

The ratio decidendi is that a tortfeasor is liable for negligent damage, even when the

claimant had a predisposition that made that damage more severe than it otherwise would

have been.

ESSR – as long as victim suffers from R.F type of harm the extend of the harm does not matter because we take our victim as we find them

e) Manner of occurrence of damage

Hughes v Lord Advocate [1963] – PARAFFIN LAMP

• Electrical workers in Scotland. Wires underground in Edinborough and electrical workers, to deal with problem underground removed access on a street and at end of day didn't return access hole cover but put weather tent on it, and tarpaulin – 4 red paraffin lamps on the site to warn the traffic.

o 8 year old boy with his 10 year old uncle starting meddling with the equipmento They picked up a lamp and entered the tent

• Hughes took lamp with him. Lamp broke, paraffin vaporized, flame ignited paraffin gas and he suffered third degree burns and so family brought proceedings against lord advocate

Issue• Whether D had taken adequate steps and sufficient duty of care. • Was the accident and kind of injury suffered a dfifferent type than that oculd have

been foreseeable.• Was the accident foreseeable in nature

Held- No contrib negligence – Post Office did not own land so no trespassing. Age and mind

of appellant taken into account. - On whether the D had taken reasonable care to prevent the accident – was doubted

by Lord Jenkins on following the standard described by Lord Atlkin in DvS – “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor”.

- Cout ruled that they had not taken reasonable steps

- Children were reasonable class of plaintiffs – Defendant could not prove that children were unforeseeable

• Lord Reid in Hughes v Lord Advocate - The TYPE OF INJURY WAS FORESEEABLE. Paraffin lamps = BURNING. The degree does not matter – only the type.

• NOT THE PRECISE MANNER OF HARM NEEDS TO BE REASONABLY FORESEEABLE - SUFFICIENT THAT YOU REASONABLY FORESEE THE TYPE OF HARM SUSTAINED (infliction of harm via burns - here, via than being a direct burn it occurred via an explosion. The fact that it did not occur in this was did not mean it was reasonably foreseeable.

Civil Liability Act reforms

Civil Liability Act 2002 (NSW) ss SD, SE

This is the starting point in legislation for causation. March v Stramare is CL. Section SD(1) is an attempt of statutory restatement of March v Stramare.

5D General principles(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( "factual

causation"), and (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm

so caused ( "scope of liability"). (2) In determining in an exceptional case, in accordance with established principles, whether

negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

o Look at material cause. (3) If it is relevant to the determination of factual causation to determine what the person who

suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances,

subject to paragraph (b), and o Eg. negligent “failure to warn” cases.

(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 determining the scope of liability, the court is to consider (amongst other

relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

o Look at policy (March v Stramare) for causation and remotenesso Test for remoteness is reasonable foresight of damage (Wagon Mound No1).

State Rail Authority of New South Wales v Chu (2008)

Principle of Law: The criminal act of a third party may constitute an intervening act (novus actus interveniens) which breaks the causal connection between the defendant's negligence and the plaintiff's damage.

Facts• In Dec 2002, the plaintiff (respondent) fell while walking down stairs at the defendant's

(appellant's) railway station at Sydenham and fractured her left ankle• In the plaintiff's proceedings against the defendant to recover damages for personal injury,

the trial judge in the District Court of New South Wales found that the cause of the accident was the defendant's negligence (the hazardous condition of the stairs)

• In addition to awarding the plaintiff damages for her fractured left ankle, the trial judge awarded the plaintiff damages for the psychological injury suffered by her as the result of a sexual assault committed against her about 5 or 6 weeks after the accident and at a time when the plaintiff's leg was still in plaster

o A man who had been assisting the respondent, taking her around and speaking English with her invited her to his home. He took her into his bedroom and would not let her leave. He took her mobile phone and purse and put them on a high shelf, out of her

reach. He forced her to have oral and vaginal intercourse and subjected her to physical beatings. It was many hours before able to leave

o It was the respondent's case before the DC that the sexual assault was a direct and foreseeable result of her fall at Sydenham Station. The trial judge accepted this proposition. He found that the respondent's reduced mobility made her more vulnerable to a sexual predator and hindered her capacity to escape

• The trial judge found that this was a foreseeable consequence of the appellant's breach of duty• Accordingly damages awarded to the respondent for psychological injury included compensation for

the sexual assault and its aftermath• Was a sexual A a R.F type of harm as a result of fracturing the ankle – s.5D(1)(b) – if subsequent

conduct is R.F. than it is within the scope of liability.On appeal, the defendant challenged the trial judge's award of damages for psychological injury

suffered by the plaintiff as the real cause of the sexual assault. The NSW CA held that the sexual assault constituted a novus actus interveniens which broke the chain of causation between the defendant's negligence and the psychological injury suffered by the plaintiff as a result of that assault. Accordingly, the defendant was not liable for this aspect of the plaintiff's damage.

- It was not clear that Held• The real question is whether the trial judge erred in finding the matters of causation and

foreseeability in favour of the respondent• The appellant submitted that the trial judge overstated the evidence linking the

respondent's injury with the subsequent sexual assault. It was not her lack of mobility which principally constrained her from leaving the assailant's room. Other factors were more significant, particularly the presence downstairs of the assailant's parents, and the fact that the assailant had taken her wallet and telephone and she did not want to leave without them

o There is considerable strength in this submission. From a factual point of view there was little evidence to support his Honour's finding on the causation issue.

• The sexual assault was plainly, in my view, a novus actus interveniens which broke the chain of causation.

• There was a clear break in the causal link between the injury suffered by the respondent as a result of her fall at the appellant's station and the injury she suffered as a result of the sexual assault some weeks later

• It was not reasonably foreseeable that a young woman who was immobilized to the extent of having to use crutches would thereby be exposed to criminal sexual assault

• Appeal allowed in part

Extent of causal responsibility marked by test of reasonable foreseeability.