#6121 - Negligence Causation And Remoteness - Tort I (Intentional & Negligence)

Causation & Remoteness Causation 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 Legislation s 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 provision s 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 Remoteness 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 Causation: a question of fact Remoteness: a question of law damages --- compensation damage --- type of harm General Damage is the gist of negligence. * There can be no liability until damage is suffered. * The limitation period in negligence starts when the damage is suffered. The damage must be the kind of damage recoverable in law. * The damage must be caused by the defendant's negligence. in breach his or her duty as a matter of fact. As a policy limitation, the damage must not be "too remote". * The damage must be within "the scope of the defendant's liability" as a matter of law. 1. The plaintiff 's husband, as well as his two fellows presented themselves in the defendants' hospital, complaining to a nurse that they had been vomiting for three hours after drinking tea. 2. The nurse thought it was a normal symptom of the intoxicated, not relevant to what they drank after the wine, therefore, not inquired anymore. 3. The nurse then followed the advice of the duty medical casualty officer, who thereupon instructed her to let them go home and call their own private doctors. 4. After five hour later after they left, one of the men (plaintiff 's husband) died. 5. Evidence showed he died from the poisoning by arsenic which had been introduced into the tea. 6. Evidence also showed he might have died even if he had been admitted to the hospital wards and treated with all care five hours before his death. more probably than not 1. The plaintiff sustained serious injuries in a motor vehicle accident in 1983 and from then on, he suffered continuing pain. 2. In 1988, he retire from his position in Flinders University, 4.5 years earlier than the retirement age 65. 3. One of the reasons for the plaintiff 's earlier retirement was his desire to devote as much time as possible to research and creative philosophy. 4. Another reason, although not the main reason, was the plaintiff believed he was not performing to the level that he thought desirable, i.e., the level before the accident. 5. No evidence showed that the university believed that either his teaching or his administrative skills were unsatisfactory. Whether the premature retirement would have occurred but for the plaintiff 's accident-caused injuries? If the chain is not broken by the intervening act, then the first act is at least contributory to the suffered injury. Leading authority for "but for" test Contributory approach: If the defendant's conduct is a cause and material contributing factor to the plaintiff's harm, then the plaintiff can obtain full compensation. If this is proved, then the onus of proof shifts to the defendant to identify that there is other potential defendants who may cause the harm, to prove other contributory harm. 1. The appellant was injured when his car ran into a truck which had been parked in a position where it straddled the centre line of a six-line road. 2. The collision occurred at night, and the truck's parking and hazard light were illuminated. 3. The appellant was under the influence of alcohol and was driving at an excessive speed. 4. Trial judge ordered appellant 30% contributory negligence. 5. First appeal held that the appellant's own negligence was the sole effective cause of the accident. On appeal to the HC. Causation A Question of Fact Barnett v Chelsea Hospital [1969] 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 be prevented or minimized the damage. * What flowed from the breach of duty? Although the burden lay on the plaintiff to show that the damage was caused by the wrongful act, once it was established, as it was, that the defendant should have treated the deceased, the burden passed to them (the defendants) to establish that the appropriate treatment would have failed. * Since the defendants provided and ran the casualty department to which the deceased presented himself complaining of illness or injury, such a close and direct relationship existed between them and him that they owned him a duty to exercise the skill and care to be expected of a nurse and medical casualty officer acting reasonably notwithstanding that they had not been treated and received into the hospital wards. The medical casualty officer was negligent in not seeing and not examining the deceased, in not admitting him to the wards and in not treating him, and accordingly, the defendants were in breach of their duty to the deceased. * But since he must have died of the poisoning even if he had been admitted to the wards five hours before his death and treated with all care, the plaintiff had failed to establish on the balance of probabilities that the defendants' negligence had caused the death; and that therefore, the claim failed. Medlin v State Government Insurance Commission (1995) The necessary causation between a defendant's negligence and the termination of a plaintiff's employment, in the sense that such termination is the product of an accident-caused loss of earning capacity, can exist notwithstanding that the immediate trigger of the termination was the plaintiff's own decision to retire prematurely. For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience. where the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage, 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 connexion 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 or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent act or decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of commonsense and experience, properly to be seen as having caused the relevant loss or damage. In some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed, eg., where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision. "But for" Test March v E & MH Stramare (1991) Causation is determined by applying the 'but for' test as well as common sense principles to the fact of the case. Value judgments and considerations of policy also have a role to play in the context of causation. Mason CJ * The 'but for' test was not, and should not be, a definitive test of causation where negligence was alleged. The test, when applied as an exclusive criterion of causation, yielded unacceptable results. These results had to be tempered by the making of value judgments and the infusion of policy considerations.