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Torts B Extended Causation Notes

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This is an extract of our Torts B Extended Causation document, which we sell as part of our Torts Law Notes collection written by the top tier of Monash University students.

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Causation In the case of negligence the rules of causation and remoteness determine not merely to what extent damages are recoverable, but also whether the action succeeds at all, for this tort is actionable only if damage is proved and is linked, by causation, to the fault of the defendant. Legislation now provides a statutory basis for determining the questions both of the fact of there being a causal link between the D's conduct and the harm suffered by the plaintiff, and of the scope of D's liability. It is assumed that in interpreting these provisions the courts will look to the general principles states in this chapter. Introduction

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The D's harm must have caused or contributed to the harm for which the plaintiff seeks damages (compensation) o

Even where there is a duty of care and there has been a breach, court's will not find D liable unless the loss or injury suffered was incurred as a direct result of that breach of duty.

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Determination of causation in negligence is now set out in statutory form (see Wrongs Act- They draw on recommendations from the Ipp report)

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However, there are certain exceptions where common law will continue to apply eg dust diseases (asbestos), tobacco, motor vehicle accidents

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Note: much of case law examined was prior to Ipp reforms now set out in Wrongs Act. The law on causation has changed considerably.

Proof The onus is on the plaintiff to prove that, on the balance of probabilities, the defendant's negligence caused his or her injuries.

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This usually requires the submitting of direct or circumstantial evidence. It is a question of law. Proof by inference is acceptable proof.

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It will be necessary for the plaintiff 'to establish by evidence circumstances from which it may be fairly inferred that there is reasonable probability that the accident resulted from want of some precaution to which the defendant might and ought to have resorted'

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P must establish a prima facie case that, on the balance of probabilities, the fault of the D 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 minimised the harm

Section 52, Wrongs Act: "In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation."

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Proof by inference is an acceptable means of discharging this evidentiary burden of proof

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The evidence is often crucial

Holloway v McFeeters (1956) 94 CLR 470

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Facts: o

Husband of the P had died as a result of injuries caused when he was struck by a car in circumstances where the identity of the person driving that car was unable to be established

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Widow issued proceedings against the nominal defendant (when you cannot identify the driver)

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Claimed the unknown driver had been negligent, as there were no available eye witness accounts. However, P argued an inference could be drawn from other evidence.

"[I]t is a mistake to think that because an event is unseen its cause cannot be reasonably inferred...Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause 'you need only circumstances raising a more probable inference in favour of what is alleged...
[W]here direct proof is not available it is enough if the circumstances appearing in the

evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture..." "All that is necessary is that according to the course of common experience the more probable the inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood."

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Majority of the HC found that it was more probable than not that the car was being driven negligently, thus the widow had a claim.

Causation in Fact Causation in Fact: The issue of causation is whether D's careless, on the balance of probabilities, materially contributed to or increased the harm to the plaintiff.

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The evidentiary onus may shift. Where P has proved a breach of duty by D and can establish that the breach increased the risk of injury and that risk eventuated, D will be held liable in the absence of proof of an alternative cause.

Section 51(1): General Principles A determination that negligence caused a 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). Preliminary Points:

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Every occurrence involves a complex of causes that are jointly sufficient to produce it

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To be a cause of the D's breach therefore need not be the only cause, but it must contribute in a real or a material way to the Plaintiff's harm

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As a legal concept, causation is a matter of ordinary common sense and is not a philosophical or scientific inquiry.

The 'But For' Test

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Key question: would the plaintiff's injury have occurred but for the defendant's breach of the duty of care?

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Subsidiary question: should we look at it as a factual matter or whether policy considerations should be taken into account?

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To address it, the judge or jury has to imagine a hypothetical set of circumstances that is the same as the one that has occurred, but where the D's negligence is absent o

In this hypothetical world, would the harm have occurred? (without the D's negligence)

Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428 Facts:

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Night watchmen, drinking tea and was poisoned with arsenic

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He went to the hospital and asked for treatment

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The nurse phone the duty doctor (who was also feeling unwell) and told him to go home and call his own doctor

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The night watchmen died

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Case was brought against hospital by widow, alleging negligence for failing to treat her husband

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Evidence was led that if he had been admitted and treated with antidote, he could not have been saved

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So did the negligence cause his death? No amount of care by the hospital even at the time he presented could have saved him

Ruling:

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While the doctor was clearly in breach of his duty to treat the now deceased husband, causation could not be satisfied on the facts and so the hospital was held not liable

Rosenberg v Percival (2001) 205 CLR 434 Facts:

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P was a director or nursing and had surgery performed on her jaw

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Prior to taking the decision, she considered three different treatment options and was well informed of the various options

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Although there was no negligence in the performance of the surgery, the allegation was that D had been negligent in failing to warn of the risk of particular complications setting in post-surgery

Held:

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On evidence presented: trial judge found, even if ('but for') the P had been warned of the risks of complications, it was likely she would have still had the surgery

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Therefore the failure to warn was causally irrelevant and D's surgeon was not held to be liable.

What would the Plaintiff have done? - Failure to Warn Sometimes, in determining whether the P would have been harmed "but for" the D's conduct, what the P would have done is relevant. In cases of failure to warn, causation has to be established by the subjective test of whether the particular patient or the particular patient's state of mind was such that if told of the risk they would have refused to undergo the procedure. It will require evidence rather than a hindsight assessment. S 51(3), Wrongs Act If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances. Chappel v Hart (1998) 72 ALJR 1344 Facts:

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P was senior teacher and librarian

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She had a condition which was stressful, progressive and surgery was the only cure

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She was referred to the defendant (an ENT surgeon)

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He advised her to have an operation to remove the pouch in her throat

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P asked about risks of operation, stating she didn't want to end up with a croaky voice

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D failed to warn her of risks, and the rare risk of an infection which would lead to a croaky voice

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P argued that if she had known of the risk, she would not have had the operation at the time but would have consulted with a more experienced consultant surgeon in the field

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She developed an infection, resulting in temporary paralysis and she was unable to shout. She resigned from work

Held:

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Question was: whether D's failure to warn of risk was the cause of P's injury?

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'If a wrongful act or omission results in an increased risk of injury...and that risk eventuates, the defendant's conduct has materially contributed to the injury...
whether or not other factors have also contributed'

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Had D informed P about a more experienced surgeon being able to perform the operation then the nature of the risk would have remained the same but the degree of risk would have been diminished

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If the foreseeable risk to P was the loss of an opportunity to undergo surgery at the hands of a better surgeon, the duty was to inform her that there were more experienced people in the field

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If D had disclosed risk, she would not have had the operation but would have consulted someone else ('but for' test)

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Dissent: the risk would have always been the same. Even though there was a breach, the risk would be the same.

Statutory Support Section 56(1), Wrongs Act In any proceeding, where, for the purpose of establishing that a person (the defendant) has breached a duty of care owed to the person who suffered harm (the plaintiff), the plaintiff alleges that the defendant has - (a) failed to give a warning about a risk of harm to the plaintiff;

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(b) failed to give other information to the plaintiff the plaintiff owes the burden of proving, on the balance of probabilities, that the plaintiff was not aware of the risk or the information. Limitations of the "but for" test

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Too broad: the test will identify as causes all necessary conditions of an event, many of which will not be legally relevant

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Too narrow: the test can fail to identify some causes of an event that are legally relevant, e.g. Multiple Sufficient Causes

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Too inconsistent: the test can involve hypothetical reasoning that leads to different results

Section 51(2), Wrongs Act If something is not found to be a necessary condition of the harm, consideration should be given as to whether or not and why responsibility should nonetheless be imposed on the defendant March v Stramare (1991) 171 CLR 506

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Leading case on causation before the IPP reforms

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High court insisted that the application of the 'but for' test must be moderated by the making of value judgements and taking into account policy considers

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Facts: o

D had a fruit and vegetable store

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For many years he parked a truck in the middle of a road, finding it was the most helpful position to place the truck for loading it

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The road was reasonably well lit, and the truck's parking and hazard lights were on

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P drove down the street and collided with the truck. P had been speeding and drinking which had impaired his driving ability.

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P suffered harm as a result of the accident

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Both P and D were found to be negligent

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Responsibility of P's injuries were 30% due to D's negligence, and 70% due to himself

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"On the question of factual causation, he stated that the 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 must also take account of the common sense approach. The test 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 ... could end up that neither is a cause. ... the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury ... the cases demonstrate the lesson of experience, namely that the test applied as an exclusive criterion of causation yields unacceptable results and that the results must be tempered by the arming of value judgments and the infusion of policy considerations..."

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Court found the test was inadequate when there was more than one cause of damage.

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