Causation - Torts Law

Class 11- Causation

Damage:

• The plaintiff needs to prove that the defendant’s breach of duty is a cause of the plaintiff’s harm or damage. The defendant’s negligence must be a proximate cause (rule against the remoteness of damage).

• Duty is general. Then breach and then remoteness which is particular.

• In order to recover the plaintiff must prove damage.

• Where there is just a risk of harm, the plaintiff cannot recover. There are two problems. The first is when does damage actually occur and if damage has not yet occurred can the plaintiff recover for the loss of monitoring their condition? (i.e. if they have been exposed to a toxic substance and damage occurs years later)

• In Potter v Firestone Tire and Rubber Company (1993), (California) four people had their well polluted. Firestone was found to be negligent and the plaintiffs were awarded $800,000 for their present fear of cancer. They received other sums for treatment. The elements that must be proved for a fear of cancer claim are;

  • The plaintiff is exposed to toxic substance because of the defendant’s breach of duty.

  • The plaintiff’s fear stems from knowledge backed up by scientific opinion that the plaintiff will develop cancer in the future.

  • They must show a significant increase in the risk of cancer.

  • They must show that they had enough exposure to result in the fear of cancer.

• In Australia: Rothwell v Chemical and Insulating Company Ltd (2008), the question was whether compensation was available to a worker who was exposed to asbestos and had symptoms that showed he could develop mesothelioma. It was found that symptomless plaques are not compensatable damage and the risk of future illness or the fear about possible risk does not amount to damages.

CLA

• The definitions of harm and personal injury are underpinned by what is damage in the common law.

• In Gett v Tabet (2009), it was thought that loss of chance of a better outcome in medical cases could not be compensated.

Causation and remoteness:

• In McGhee v National Coal Board (1973), Lord Reid said that the legal concept of causation is based on the practical way a man’s mind works and is not based on logic or philosophy.

• There is a common sense causation test. The foresee-ability test does not apply to causation. It is hard to reconcile this with whether there is a new intervening cause (novus actus interveniens)

• The Wagon Mound Cases (1963) reject the directness test. They require that the defendant foresee the kind of damage and not the actual damage.

• The statutory test: In Victoria the general principals are set out in the Wrongs Act 1958. Negligence must be a necessary condition of the occurrence of harm and it must be appropriate for the scope of the negligent person’s liability to extend.

• Was the conduct a necessary condition of the harm, in the sense that harm would not have occurred but for the conduct? (Negligence Review Pannel).

• The statutory provisions overlap causation and the remoteness of damage. The but for test does not work in all cases so the CLA makes provisions for exceptional cases which do not satisfy the test.

Causation:

• The plaintiff needs to prove that the loss could not have occurred but for the defendant’s negligence.

• Justice McLachlin argued that the but for test denies recovery where instinctive sense of justice tells us the victim should receive compensation.

• In Barnett v Chelsea and Kensington Hospital Management Committee (1969), the deceased had drunk tea which was found to be poisoned with arsenic. The doctor refused to attend because he was unwell and the man died. The judge found that even if the doctor had come immediately he would not have saved his life.

Page 474

March v Stranmare (1991) – Causation (very important case)

Facts:

• Stranmare parked his truck in the middle of a six lane road outside a market in the early morning to unload the truck with a forklift. He had his hazard lights on.

• March was speeding and affected by alcohol. He was injured when he collided with the truck.

Remedy sought:

• March wanted damages for negligence.

Prior proceedings:

• March won in trial but was found 70% contributory negligent. He appealed to the Full Court of SA and lost. He appealed to the High Court.

Legal issue:

• Should the but for test become the exclusive test of causation in negligence cases?

• Was the chain of causation broken by a novus actus interveniens?

Outcome:

• Appeal allowed. March won. The plaintiff was 70% liable.

Legal reasoning:

• Mason CJ reasoned that reasonably foreseeable is not in itself a test of causation but instead marks the limits beyond which a wrongdoer will not be held responsible for damage resulting for his wrong full act. Chapman v Hearse rejected reasonable foresee-ability as a test of causation. A value judgment should play some part in resolving causation issues as well as the but for test. The but for test is troublesome when there are multiple acts leadings to the plaintiff’s injury. Stramare’s wrongful act in parking the truck in the middle of the road created a situation of danger which would cause risk to a careless driver. The chain of causation was not broken by a novus actus. Apply the test with a common sense principle. Reasonable foresee-ability should mark out boundaries for working out if a party is liable- this is a rule of policy (used in terms of remoteness). There is a common sense approach.

• McHugh J reasoned that the but for test is a limiting rule. March’s injury was within the scope of the risk created by Stramare’s negligence. Legal ideas of causation can be divorced from normative questions about who should be liable.

Ratio decidendi:

• Novus actus interveniens breaks the chain of causation which would otherwise have resulted from an earlier wrongful act. It would be unjust to hold the defendant legally responsible for an injury which was the immediate result of the plaintiff’s unreasonable action (Mason).

• The but for test should be used but when there is causation and multiple acts that lead to injury, common sense notions of causation should be used.

• Foresee-ability is not the exclusive test for remoteness and that policy based rules should also be used like the scope of risk test which enables policy factors to be used by reference to common sense notions of causation (McHugh).

Page 479

Chapman v Hearse (1961) – Novus Actus Interveniens.

Facts:

• Dr Cherry stopped to assist Chapman after a car accident and was killed.

• Hearse was sued by Cherry’s family and Chapman joined as a third party.

Prior proceedings:

• Chapman was made to make a one fourth contribution to Hearse’s damages. He appealed to the High Court after losing in the SC of SA (full court).

Legal issue:

• Did the fact that Hearse was driving dangerously break the chain of causation between the original negligent act and Cherry’s death?

Outcome:

• Chapman lost.

Legal reasoning:

• Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ reasoned that Dr Cherry’s presence on the roadway was immediately the result of Chapman’s negligent driving and the risk of injury from passing traffic was real and not remote or fanciful. If you drive negligently it is reasonably foreseeable that you will crash and someone coming to your assistance will get injured. Just because an act is wrongful does not mean it is not foreseeable. The issue is who should bear most of the weight of compensation?

Ratio decidendi:

• Reasonably foreseeable is not 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.

• Novus Actus interveniens can break the chain of causation so that the original negligent act is no longer the breach.

Page 481

Haber v Walker (1963) – Causation- is mental illness causing suicide a result of a car accident?

Facts:

• Haber’s husband was injured in a motor accident that resulted from Walker’s negligence. He suffered brain damage and committed suicide.

• Haber sued under section 16 of the Wrongs Act 1958 (Vic)

Prior proceedings:

• Haber lost. Suicide was not thought to be reasonably foreseen. Appealed to the FC of the SC of Victoria.

Legal issue:

• Was the suicide a novus actus interveniens that severed the chain of causation (a voluntary act)?

• The issue was whether the plaintiff’s husband’s suicide was a voluntary act which severed the chain of causation from the wrong which caused his brain damage or whether it was a foreseeable consequence for which the defendant could be held responsible.; that is, was it too remote? Held: for an intervening act to be held as severing the connection must be either a voluntary human action or something so extremely unlikely as to be a coincidence and the chain of causation was not severed.

Outcome:

• Haber won.

Legal reasoning:

• Lowe J reasoned that whether the chain of causation is broken is very much a matter of circumstance and degree. If the act is not the conscious act of a sane person then it does not break the chain. Not a voluntary act in the sense that it did not lead to voluntary actions.

• Smith J agreed. Since the suicide was not voluntary there was no novus actus interveniens.

Ratio decidendi:

• (Smith) Common sense considerations must be used in the legal doctrine of causation.

• (Smith) A wrongful act or omission must have caused the harm.

• The harm could not have occurred without it. It is a cause of harm unless there intervenes between an action or omission which is necessary for the production of harm and severs the casual connection.

• The intervening action must be voluntary, casually independent and is not a coincidence.

• The...