4B . Causation - Common Law

Question 1

1. Complete headings to memorise for 5D(1) - 5D(1)(a)

Answer 1

Causation - 5D(1)(a) Statue and Case Law

1. Causation
2. General Rules (Adeels Palace v Moudarak; Benic v NSW)
3. Statute
   
   1. 5D 1 Statute
   2. 5D 1 Notes (Bendix Mintex)
   3. 5D (1)(a) Statute
   4. 5D (1)(a) Statute interpretations (Benic v NSW; Ipp Report; March v Stramare; )
      
      • The ‘but for’ test (March v Stramare)
        
        • Mere probability of harm may be sufficent to prove causation (Adeels Palace v Moudarak; Amaca v Ellis)
        • When evidence cannot conclude omission but high probabliy can (Strong v Woolworths)
        • Interveing act must be voluntary and not RF to break COC. (Haber v Walker; Medlin v State Gov Insurance)
          
          • Conscious knowledge of intervening act (McKew v Holland)
          • Non-tortious superveing event (Jobing v Associated Dairies)
          • Criminal Intervening Acts (SRA v Wiegold)

Question 2

Causation - Second Test and Other rules heading list to remember

Answer 2

1. 5D(1)(b) - Statute
2. 5D (4) - Statute
3. Backward looking RF (Wallace v Kam)
4. Test for Remoteness
   
   1. RF in Remoteness (Wagon Mound)
   2. RF Kind of Damage (Hughes v Lord Advocate)
   3. Mere exposure could be cause of action of damage at a later time (Alcan Gove v Zabic)
   4. Novus Actus Interveniens (Chapan v Hearse)
   5. Medical Novus Intervenes (Mohony v J Kruschich)
5. Egg Shell Skull Rule (Nader v Urban Transit NSW; Kavanagh v Ahktar; Stephenson v Waite Tileman)
6. 5D(3) Statute
7. 5D(3) at CL (Chappel v Hart)

Question 3

• General Rules at Common Law interpretation of CLA 5D:
• Adeels and Benic general rules

Answer 3

• Common Law test for causation no longer relevant test because 5D CLA deals with the issue of causation. (Adeels Palace PL v Moudarak (2009) 239 CLR)
• BOProof falls onto P to demonstrate, not that early intervention might be successful, but that on the BOProb it would have been successful (Benic v NSW)

Question 4

Onus of proof in causation Statute and summary

Answer 4

In determining liability of negligence, the plaintiff always bears the onus of proving, on the BOP, any fact relevant to the issue of causation. (CLA s 5E)

Question 5

General Principles of Causation at Statute

Answer 5

5D

• (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).” ​

Question 6

5D (4)

Answer 6

• 5D (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.”

Question 7

How does Bendix Mintex v Barnes (1997) 42 NSWLR 307 interpret “neglience caused particular harm”?

Answer 7

“negligence caused particular harm” interpreted as ‘caused or materially contributed to”

Question 8

• 5D (1)(a) Interpretations:
• 1. Factual causation is a question of …
• 2. Aka “causa sine qua non” or commonly known as ….

Answer 8

1. Fact
2. The ‘But for’ test

Question 9

What was the question of fact on the issue of causation in the Benic v NSW?

Answer 9

that P would not have suffered from PTSD had he had been referred at an early state, for review, assessment, treatment, by a health professional, either by a psychologists or a psych special unit, or psychiatrist

Question 10

What does the IPP Report say about the test for causation?

Answer 10

The basic test of causation is whether the conduct was a necessary condition of the harm, in the sense the harm would not have occurred ‘but for’ the conduct.

‘and’ - both limbs of the test must be satisfied

Question 11

According to March v Stramare, the test of casuation is not based on what?

Answer 11

ot based on science or philosophers, but on common sense considerations

Question 12

THE ‘BUT FOR’ TEST

If damage occurred notwithstanding the conduct, …

Answer 12

If damage occurred notwithstanding the conduct, the conduct is not a cause. (March v E & M Stramare

Question 13

THE ‘BUT FOR’ TEST

How is this test divided According to March v Stramare?

Answer 13

• 1. A question of fact – The ‘but for’ test
• 2. A question of Law – Further public considerations and value judgement. (NOT EXAMINABLE.)
     * When the but for test does not provide an answer, in case as novus actus interveniens, is said to break chain of causation.
     * Should be concerned with remoteness of damage, not causation.
     * Value judgements of common sense is needed to supplement the but for test.

Question 14

Parked Truck, drunk driver collision case?

Answer 14

March v E & M Stramare PL (1991) 171 CLR 506 - HCA Case

Question 15

THE ‘BUT FOR’ TEST

The ‘but for’ test should be …… . . Any other limiting responsibilities for damage caused by acts should recognized as policy-based rules concerned with remoteness of damage and not causation.

Answer 15

be seen as a legal test of causation (March v Stramare)

Question 16

BUT FOR’ TEST

According to Adeels Palace v Moubarak (2009) 239 CLR, to satisfy factual causation, what must be shown?

Answer 16

• (1) To satisfy factual causation, it must be shown that is more probably than not, but for the absence of security personal (BDOC), the shootings (INJURY) would not have taken place.
• (2) The absence of security personal (BDOC) was not the necessary condition for their being shooting (INJURY).
• (Adeels Palace v Moubarak (2009) 239 CLR 420)( Punchbowl Dancefloor Gunman Case)

Question 17

MERE PROBABILITY OF HARM MAY BE INSUFFICIENT TO PROVE FACTUAL CAUSATION

Adeels Palace v Moubarak on mere probablity of factual causation?

Answer 17

Recognizing that changing any circumstance in which the harm occurred ‘might’ have made a difference does not prove factual causation.

Question 18

§ MERE PROBABILITY OF HARM MAY BE INSUFFICIENT TO PROVE FACTUAL CAUSATION

Adeels Palace v Moubarak (2009) 239 CLR 420 on altered chain of events and mere probablity?

Answer 18

If evidence suggests that the change of circumstances would not have guaranteed an option to prevent the harm or would only have altered the chain of events in which someone else would have been harmed does not prove factual causation.

Question 19

§ MERE PROBABILITY OF HARM MAY BE INSUFFICIENT TO PROVE FACTUAL CAUSATION

The appropriate analysis is to consider whether the breach of duty, in itself, is causative of damage.

Case?

Answer 19

(Amaca v Ellis (2010) HCA 5)(Asbestos Smoker Worker Case)

Question 20

§ MERE PROBABILITY OF HARM MAY BE INSUFFICIENT TO PROVE FACTUAL CAUSATION

According to (Amaca v Ellis (2010) HCA 5)(2 Asbestos 1 Smoker Worker Case), It must be shows that D’s breach was actually the cause, not that

Answer 20

exposure to risk (asbestos) merely (or ‘may have’) increased the risk of injury

Question 21

§ MERE PROBABILITY OF HARM MAY BE INSUFFICIENT TO PROVE FACTUAL CAUSATION

Assessed on the BOP, P must prove ———— the negligence of each D caused the harm, it is a question of fact.

Answer 21

that it was more probable than not

• (Amaca v Ellis (2010) HCA 5)(Asbestos Smoker Worker Case)

Question 22

§ MERE PROBABILITY OF HARM MAY BE INSUFFICIENT TO PROVE FACTUAL CAUSATION

(Amaca v Ellis (2010) HCA 5)(Asbestos Smoker Worker Case), what was the probablity found in court and did it tip the BOP.

Answer 22

Evidence of a lesser chance (23%) of developing lung cancer (the harm) does not ‘tip’ BOP.

Question 23

§ WHEN EVIDENCE CANNOT CONCLUDE CAUSING OMISSION BUT HIGH PROBABLITY CAN

Whilst onus of proof lays with P, to prove D’s BDOC was a necessary condition of her injury, such onus can be discharged by consideration of the probabilities where evidence could not prove when the event (the dropping of the chip) occurred.

Answer 23

• (Strong v Woolworths Ltd [2012] HCA 5) (Slippery Chip Case)

Question 24

§ WHEN EVIDENCE CANNOT CONCLUDE CAUSING OMISSION BUT HIGH PROBABLITY CAN

Proof of casual link between an omission and an occurrence requires consideration of ..

Answer 24

• of probable course of events had the omission not occurred (Strong v Woolworths Ltd [2012] HCA 5) (Slippery Chip Case)

Question 25

§ WHEN EVIDENCE CANNOT CONCLUDE CAUSING OMISSION BUT HIGH PROBABLITY CAN

The necessary condition is the condition that must be present for the occurrence of harm

Answer 25

Strong v Woolworths Ltd [2012] HCA 5) (Slippery Chip Case)

Question 26

§ WHEN EVIDENCE CANNOT CONCLUDE CAUSING OMISSION BUT HIGH PROBABLITY CAN

In Strong v Woolworths Ltd [2012] HCA 5, what was the reasonable care required?

Answer 26

A reasonable care required inspection and removal of slipping hazards at intervals no greater than 20 minutes.

Question 27

§ INTERVENING ACT MUST BE VOLUNTARY AND NOT REASONABLY FORSEEABLE TO BREAK THE CHAIN OF CAUSATION:

According to (Haber v Walker [1963] VR 339 – FCSCV (MVA, then Suicide Case):

Answer 27

1. A conscious act by a sane person does not necessarily break chain of events.
2. Where there is an intervening act, causation will be cut off if :
   
   1. 1. Act or omission is not the cause of harm, unless the harm would not have occurred without the act/omission
   2. 2. If 1 is satisfied, Initial act/omissions is to be regarded as cause unless there intervenes an act/omission that is sufficient to sever the casual connection.
   3. 3. If 1 & 2 satisfied the intervening act must be
      
      • (A) a human action that is properly to be regarded as voluntary OR
      • (B) a casually independent event (intervening act) is by ordinary standards so extremely unlikely to be termed as a coincidence.
3. P’s husband’s act was not voluntary as the alleged intervening act was caused by his brain damage resulting from his depressive state caused by D’s negligent conduct.

Question 28

INTERVENING ACT MUST BE VOLUNTARY AND NOT REASONABLY FORSEEABLE TO BREAK THE CHAIN OF CAUSATION

It may be reasonably foreseeable that a person, who’s suffered an injury as a consequence of D’s negligence would voluntarily retire earlier than predicted which does not break the chain of causation.

Answer 28

• (Medlin v State Government Insurance Commission (1995) 182 CLR) (Philosophy Professor Retirement Case)

Question 29

· Conscious knowledge intervening act can sever COC:

Even though P was injured by D’s negligence, causation MAY BE severed if P does something unsafe and unreasonable (not seeking help), with the knowledge that he had a previously injured himself in a similar circumstance

Answer 29

• (McKew v Holland [1969]) (English Case)(Injured P gets Injured again going down rail less stairs Case)

Question 30

· Non-tortious supervening event:

If a non-tortious supervening event (Vicissitudes (unfortunate) of life, including disease and illness) would break the chain of causation, therefore, no damages are to be paid out for the period after the disease would have rendered P unable to work in the future.

Answer 30

Jobling v Associated Dairies Ltd [1982] AC 794

Question 31

· Criminal Intervening Acts, When D’s act caused P to engage in criminal Activity

D should not be liable for the losses sustained from a rational and voluntary decision to engage in criminal activity as it would fall outside the limits for which a wrongdoer should be held responsible

Answer 31

• (SRA v Wiegold (1991) 26 NSWLR 500) (P get injured, starts growing weed cuz of injury, gets arrested Case)

Question 32

• Backward looking foreseeability in scope of liability:

Foreseeability, in causation and duty, serve different functions. Foreseeability in duty imposes a forward looking rule of conduct, whereas foreseeability in causation is a backward looking attribution for responsibility for breach of that rule.

Answer 32

• Wallace v Kam (2013) 250 CLR 375 HCA)

Question 33

) 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

Answer 33

5D (4)

Question 34

§ TEST FOR REMOTENESS

· REASONABLE FORESEEABILITY (RF)

• The Wagon Mound (No.1) [1961] AC 388) on RF

Answer 34

• The test for remoteness is reasonable foreseeability of the kind damage suffered by the plaintiff. (The Wagon Mound (No.1) [1961] AC 388)
• If the risk of harm was foreseeable (Engineers knowledge of leak and very low possibility of fire occurring), the probability of harm was very low (reasonable engineer would not dismiss the risk), or the possibility harm would only happen in exceptional circumstances, D bore a duty to prevent the risk. (The Wagon Mound (No.2))
• A harm is NOT reasonable foreseeable if it is physically impossible or be regarded as so fantastic or farfetched that not a reasonable person would have paid any attention to it. ((The Wagon Mound (No.2))

Question 35

Wilkinson v Downtown [1897] 2 QB 57 on RF under Test for Remoteness, under Scope of Liability?

Answer 35

Be the natural effect on a reasonable person recognizing the possible infirmities of human nature makes the connection between cause and effect close and complete

Question 36

• (Hughes v Lord Advocate [1963] AC 837) (Manhole Child Explosion Case) on Test for Remoteness, and Foreseeable Kind of Damage

Answer 36

• ‘Remoteness’ is the kind of damage needs to be foreseeable, not necessarily the way it occurs or the ‘exact shape of the disaster’.
• Although the accident occurred was not identical to what was expected doesn’t mean that the person is not liable if the type of accident is the same as the type which was foreseeable.

Question 37

(Alcan Gove PL v Zabic (2015) HCA 33) (Causation Asbestos Case)

on mere exposure of risk could be cause of action at a later time

Answer 37

• Hindsight is permitted in determining when a cause of action accrues (accumulation). Hindsight is employed when the endeavor to ascertain the cause of injury or damage which does not become manifest until some later time.
• Evidence must show that the risk was bound to lead to damage, more than just a probability. The aim is to ascertain when compensable damage objectively came into existence.
• Courts should not be limited to ascertain whether relevant facts were provable or discoverable at a particular time to identify a cause of action.

Question 38

Chapman v Hearse on NOVUS ACTUS INTERVENIENS

Answer 38

1. If the event is determined to be n_ovus actus and breaks the chain of causation_, original D will not be liable for its consequences.
2. The fact that the intervening act was foreseeable does not mean that the negligent defendant is liable for damage which results from an intervening act, but if the intervening act was the kind of things likely to happen as a result of D’s negligence, then there may be established the initial act caused the harm.
3. If the event is a part of an unbroken chain, the first D will be liable for all harm flowing from the original BDOC.
4. “reasonable foreseeability” is not a test for “causation”. However, factual causation/chain of causation is not broken if P can establish that subsequent act (exposing P to harm) was a reasonably foreseeable consequence of the first act (driving negligently). Where the subsequent act (exposing P to harm) is the kind of thing likely to happen as a result of D’s negligence.
5. Establishing that the intervening act (Hitting P by D2) does not cut liability as the intervening act was reasonable foreseeable result of the original act (Driving negligently by D1).

Question 39

o Medical Novus Intervenes case and ratio

Answer 39

(Mohony v J Kruschich (Demolition) PL (1985) 156 CLR 522)

An intervening act, such as medical treat of injuries, does not break the chain of causation caused by D, unless the medical treatment (novus intervenes) was “inexcusably bad”, or going completely outside the bounds of what a reputable medical practitioner might prescribe

Question 40

‘EGG SHELL SKULL RULE’:

Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501) on ‘take the victim as your find them’

• (Ganser Syndrome Kid Case)

Answer 40

1. ‘Take the victim as you find them’ takes into account the economic, social or religious attributes of P, which might make them more susceptible to injury
2. The D must take the P with all his weaknesses, beliefs and reactions as well as his capabilities and attributes, social and economic. If the result of accident is that a 10yo boy reactions to his parents concerns over his injuries, and develops a hysterical condition, no principles prevent compensation.

Question 41

‘EGG SHELL SKULL RULE’:

• (The Lesser Haired Wife Case) on eggshell skull rule?

Answer 41

.(Kavanagh v Akhtar (1998) 45 NSWLR 588)

‘Take the victim as you find them’ – D should take into account P’s family and cultural setting as the law puts a heavy onus on the person who would argue that the ‘unusual’ reaction of P should be disregarded because a minority cultural situation may not have been foreseeable

Question 42

‘EGG SHELL SKULL RULE’:

• (Stephenson v Waite Tileman [1973] 1 NZLR 152) on eggshell skull rule

Answer 42

1. if P has a special susceptibility and the initial injury was foreseeable, D would be liable for the injuries that was worse off due to the special susceptibility, as well as the initial injury.
2. As long as the initial injury sparked off the long chain of consequences, the special susceptibility does not limit the damages that D may be liable for.