Damage & Causation | Factual Causation Flashcards
s 5D(1)(a) CLA 2002 (NSW)
March v Stramare (1991) 171 CLR 506
Facts: Truck parked in the middle of a six-lane road. Parking and hazard lights on. The speeding, alcohol affected plaintiff was injured when his car collided with the truck.
Issue: had D been negligent, and did their negligence contribute to the accident?
McHugh J = CLA position
Mason CJ: causation in law is about attributing legal responsibility, it is different to science and philosophy. Doesn’t believe that the “but for” test ever was, or should become, the exclusive test for causation → favours the application of “common sense”.
Novus actus interveniens: “The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff’s injuries are not a consequence of the defendant’s negligent conduct.” (Mason CJ)
P succeeded on appeal but was 70% contributorily negligent
Adeels Palace v Moubarak (2009) 239 CLR 420
factual causation relies on the balance of probabilities, “might” is too low a probability.
This was not an exceptional case under s 5D(2) because imposing liability would not be in accordance with established principles. There was no analogy between this case and cases such as Fairchild.
“but for the negligent act or omission, would the harm have occurred?”
Strong v Woolworths Ltd [2012] HCA 5
French CJ, Gummow, Crennan and Bell JJ [at 26] “Negligent conduct that materially contributes to the plaintiff’s harm but which cannot be shown to have been a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation, subject to the normative considerations to which s 5D(2) requires that attention be directed.”
(if there are more than one set of conditions for harm, then D’s act/omission (if necessary to complete a set of conditions that are jointly sufficient) will meet the test of factual causation.)
Chapman v Hearse (1961) 106 CLR 112
Novus Actus Interveniens
If the claimed “novus actus interveniens” was reasonably foreseeable in the circumstances, even if it resulted from intervening wrongful conduct, it will not break the chain of causation.
Haber v Walker [1963] VR 339
Full Court of the Supreme Court of Victoria
Novus Actus Interveniens
The act was not a voluntary act of a sane person, therefore there can be no novus actus interveniens.
Mahony v Kruschich Demolitions (1985) 156 CLR 522
Novus Actus Interveniens
“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….”
Negligent medical treatment to treat the negligently inflicted injury – foreseeable, does not break chain unless “inexcusably bad” medical treatment
Medlin v State Government Insurance Commission (1995) 182 CLR
Novus Actus Interveniens
Professor of philosophy injured by negligence of D – felt unable to do his job to the standard he used to – employer kept him on – he made voluntary decision to retire early – did his voluntary decision break chain of causation?
No, because it could not be foreseen that he would have decided to retire early as a result of D’s negligence. P didn’t feel he had an option, therefore it was not really voluntary. He wouldn’t have otherwise retired.
Baker v Willoughby [1970] AC 467
House of Lords
Novus Actus Interveniens
P’s leg injured in car accident. 3 years later, he was shot in the same leg and it had to be amputated.
Lord Pearson: Rejects the respondent’s argument that the second injury “submerged” the first because it produces manifest injustice.
The original accident caused the “devaluing” of P → should be responsible for that unless some supervening event lessens the devaluing (such as a recovery to some extent or the second cause shortens P’s life and so they are suffering for a shorter period of time). Any additional devaluing caused by the second event that is a tort should make the second tortfeasor responsible for the additional devaluation caused by him.
Jobling v Associated Dairies Ltd [1982] AC 794
House of Lords
Novus Actus Interveniens
Slipped disk injury at work, later found to have a degenerative spinal disease.
“Vicissitudes” principle. (p. 520) including disease and illness.
Non-tortious supervening event
Breaks chain of causation
No damages payout for the period after the disease would have rendered P unable to work in the future.
Barnett v Kensington & Chelsea Management Committee
Novus Actus Interveniens
Arsenic in the tea case.
It had been negligent, but this had not caused the plaintiff’s death.
The doctor had been negligent but, due to arsenic poisoning, Barnett would have died in any case.
McKew v Holland
Novus Actus Interveniens
Employee injured (leg), decided to go down a steep flight of stairs with no handrail without seeking help, knowing that his leg had previously given out in similar circumstances.
Chain of causation (CoC) was broken by P’s decision to go down the steep stairway without seeking help, knowing that his leg had given out before.
State Railway Authority v Wiegold
Novus Actus Interveniens
Employee got injured, started growing Indian hemp because he was broke, argued that he wouldn’t have done that but for the lack of employment.
CoC broken by a “rational and voluntary decision to engage in criminal activity” (Samuels JAA, Handley JA agreeing NSWCA)
