LAWS11064 Torts B

Module 4 – Negligence: Causation and Scope of Liability (Remoteness)

Objectives

At the end of this module you should be able to:• Understand the ways in which the Civil Liability Act has affected factual

causation at common law;• Understand what is required to establish both factual causation and scope

of liability; • Apply the legal rules and principles of causation and remoteness (scope of

liability) to factual scenarios; • Understand the conceptual and practical difficulties that may arise in proving

a causal link between a negligent breach of duty and damage; • Describe and assess how courts have addressed issues of material

contribution, exceptional cases and loss of chance; and• Describe and assess the ways in which the law deals with multiple causes,

alternative causes, and intervening causes.

Negligence so far....

• Established category – provide authority• If Novel Situation apply Current Approach:

• Reasonable foreseeability• Salient features relevant to category of

case – eg. vulnerability, control• Policy factors – what problems might arise

with recognising a duty of care in this case?

1. Duty of Care

• What is the standard of care owed?• Reasonable person• Characteristics that raise or lower

standard?• Did the Def breach the standard owed?

• s 9 CLA• Was risk foreseeable?• Was risk not insignificant?• Would a RP in Def’s position have

taken precautions?

2. Breach of Duty

This week: Causation

3. Causation: CLA s 11 (Qld).

•Step 1: Factual Causation – “necessary condition” test s 11(1)(a)•“but for” test• For multiple causes, “material contribution” test• “Loss of chance” cases

•Step 2: Scope of Liability s11(1)(b)• Reasonable foreseeability of kind of damage• Intervening causes – novus actus interveniens• Egg shell skull rule

Image source: mazeo (openclipart) http://openclipart.org/detail/94567/car-accident-by-mazeo

Civil Liability Act (Qld) – Sect 11

11 General principles(1) A decision that a breach of duty caused particular harm comprises the following elements—

(a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation);

(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).

(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.

(3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—

(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.

Part 1: Factual Causation

First limb: Def’s breach was a factual cause of Pl’s injury

Why? - we only want people to be liable for harm they are responsible for.

Factual causation: A’s Breach - - - - - - - - - - - -> B’s Damage

Scope of Liability: Should A’s liability encompass B’s Damage

@ common law: “but for” test

“would the harm to P have occurred ‘but for’ D’s negligence?”

If the answer is: ‘no, the harm would not have occurred’, then D’s negligence is a cause of the harm.

Under s.11: ‘necessary condition’ test

“Was D’s negligence a necessary condition for the occurrence of P’s harm?”

If the answer is: ‘yes, it was necessary’, the D’s negligence is a cause of the harm.

Same test: per High Ct in Adeels Palace v Moubarak.It’s normatively neutral.

The ‘but for’ test in operation

A’s act(negligently runs over B)

B’s harm(eg. injury or death)

a necessary condition of

Would the harm to B have occurred ‘but for’ A’s negligence?Answer: No. Therefore A is liable.

Barnett v Chelsea Table from Julia Davis

What did occur in the case: What would have happened:

a. P drinks cup of tea poisoned with arsenic A. P drinks cup of tea poisoned with arsenic

b. P becomes sick, attends hospital, requires treatment

B. P becomes sick, attends hospital, requires treatment

c. Dr, in breach of duty, fails to treat P. C. Dr, in discharging duty, treats P, but poison is so strong that no treatment would have worked.

d. P dies from arsenic poisoning D. On BoP, P would have died from arsenic poisoning.

At c/C: Treatment would not have workedAt d/D: What did happen versus what would have happened if duty discharged

Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 (table below from Davis 2012)

The ‘necessary condition’ test in operation

• Can exclude causes: eg. Adeels Palace v Moubarak (2009) 239 CLR 420. Lack of security was not a necessary condition of the shooting – shooting would have happened even with security (as gunman determined to shoot).

• See also Wallace v Kam (2013) 250 CLR 375. Dr failed to warn of two material risks, one of which eventuated. Even if properly warned of the risk which eventuated, it was not one that would have prevented the Pl undergoing the procedure. However, if properly warned of both risks, Pl would not have had the procedure. Def’s breach a necessary condition of the harm.

• Strong v Woolworths (2012) 246 CLR 182:

“what probably would have happened”

Evidentiary gaps: multiple sufficient causes

Pre-CLA Common law test was whether Def’s negligence made a ‘material contribution’ to the risk of damage: for eg

Bonnington Castings Ltd v Wardlaw [1956] AC 613: Pl contracted silicosis from workplace; some exposure non-negligent but other negligent; held Def liable since negligent exposure contributed

substantially to illness.

McGhee v National Coal Board [1973] 1 WLR 1: Def liable for not providing washing facilities; unclear whether Pl’s dermatitis caused by innocent brick dust or negligent dust. • Applied by the Aust High Ct in Chappel v Hart (1998) 195 CLR 232;

Naxakis v Western General Hospital (1999) 197 CLR 269 and Rosenberg v Percival (2001) 205 CLR 434

Pre-CLA, the Cts developed “Material Contribution” test to deal with cases where there were multiple sufficient causes but evidentiary issues with ‘but for’ test.

Evidentiary gaps: “Exceptional cases”

• Adeels Palace v Moubarak: ‘exceptional case’ not defined by CLA. It depends ‘upon whether and to what extent “established principles” countenance departure from the “but for” test of causation’.

• French v QBE Insurance [2011] QSC 105: only arises in cases where no defendant satisfies the but for test (see [63]).

• Exceptional cases often in medical negligence or workplace. Where there is a clear breach of duty, but impossible for Pl to bridge evidentiary gap.

• Appears to legislate the “material contribution test” developed at common law.

s 11(2) CLA: In deciding an exceptional case whether a breach of duty (which cannot satisfy subsection (1)(a)) should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.

Evidentiary gaps: exceptional cases

No High Ct case on s. 11(2) except to determine what isn’t an ‘exceptional case’.

Likely to be cases like:– Fairchild v Glenhaven Funeral Services [2002] 3 WLR 89 (UK) (cases

involved mesothelioma from exposure to asbestos. Since Pl’s worked for several employers, unclear which employer’s exposure caused the injury. All employers were negligent; all were held liable since all contributed to the risk).

• Created “a modified concept of causation” per French CJ in Amaca v Booth

– In Australia: Amaca Pty Ltd v Booth (2011) 283 ALR 461 (Pl exposed to asbestos from a variety of sources).

– Cf: Amaca Pty Ltd v Ellis (2010) 240 CLR 111 (Pl exposed to asbestos but also a heavy smoker, no liability.).

In any event, s.11(2) recognises role of normative considerations in ‘exceptional’ cases.

Loss of chance – Rephrasing the damage

• Lost chance recovery more often allowed in economic loss cases, because chances have economic value.

– Eg. Chaplin v Hicks [1911] 2 KB 786 (contract case involving lost chance at beauty contest); Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 (loss of commercial opportunity); Bennett v Minister for Community Welfare (1992) 176 CLR 408 (loss of an opportunity to pursue litigation).

• Loss of chance for more favourable medical outcome:– Hotson v East Berkshire HA [1989] AC 750: 75% chance that Pl’s hip injury could

not have been cured even if treated promptly; no liability. Chappel v Hart (1998) 195 CLR 232;

– Tabet v Gett (2010) 240 CLR 537: HC dismissed claim for loss of a chance of a better medical outcome as actionable damages in medical negligence cases.

What the Pl would have done if...

• See Rosenberg v Percival (2001) 205 CLR 434: appropriate test for determining whether Pl would have proceeded with surgery if appropriately warned of the risk is subjective. “a court asks whether this patient would have undertaken the surgery … It is not decisive that a reasonable person would or would not have undertaken the surgery.” per McHugh.

• Wallace v Kam (2013) 250 CLR 375 – Even if the Pl had been warned of the risk that eventuated, it would not have deterred them from undertaking the operation. But Def’s failure to warn was still a factual cause of the harm because if told of both risks, would not have gone ahead with operation.

• Rogers v Whitaker (1992) 175 CLR 479.

See Section 11(3) CLA: eg. s.11(3)(b) provides that any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

Part 2: Scope of Liability

“Scope of liability”: s 11(1)(b) CLA

• Normative considerations previously included in factual causation (see for eg. March v Stramare)

• Now solely domain of 2nd limb.• Includes:

– Test for remoteness– Egg shell skull rule– Intervening acts (novus actus interveniens)– Legal causes of harm

• s.11(4): the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.

Remoteness

• Overseas Tankship (UK) v Morts Dock and Engineering Co (no 1) [1961] AC 385: Def negligently discharged oil into Sydney Harbour, caught fire from welding work, destroyed the wharf, two ships. Held – damage by oil fouling foreseeable, but fire was not foreseeable and Def no liable for it. Rule: type/kind of damage must be foreseeable, but extent of damage need not be. But what is same type of damage?

• Mt Isa Mines v Pusey (1970) 125 CLR 383: Pl suffered schizophrenia after assisting workmate who was electrocuted. Def employer liable – it was sufficient that the schizophrenia came within the class of injury that could be foreseen (ie. nervous shock).

• Precise causal sequence need not be foreseeable if general type of damage is. Hughes v Lord Advocate [1963] AC 837: Pl kicked over lamp causing explosion; fire was foreseeable result, so Def liable.

• SRA of NSW v Yu-Mei Chu (2008) NSWCA 14: Pl slipped at train station, broke her ankle. Several weeks later, was sexually assaulted by third party & suffered psychiatric injury. Inter alia, it was not RF that immobilisation would expose her to criminal sexual assault.

Egg Shell Skull rule

• Tortfeasor must take their victim as they find them: Smith v Leech Brain [1962] 2 QB 405.

• Per Kennedy J in Dulieu v White & Sons [1901] 2 KB 669, ‘if a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer’s claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart’ (at 679).

• Only applies to damage of the ‘same kind’, but this terminology can cause problems. – Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501: boy

suffering minor cut to head subsequently developed statistically rare psychiatric disease. Def liable as initial laceration material contributing cause of illness & close association with illness.

– Rule extends to ‘particular psychological and familial situation of the injured Pl’. See Kavanagh v Akhtar (1998) 45 NSWLR 588: Pl developed psychiatric injury after husband left her. Def liable for psychiatric injury as was reasonably foreseeable.

Intervening causes

• An unforeseeable subsequent event can “break the chain” of causation (novus actus interveniens)

Sometimes Pl’s own actions can break the chain. Eg. McKew v

Holland & Hannen & Cubitts [1969] 3 All ER 1621: Pl unreasonably

sought to climb unsafe stairway after Def injured him.

Mahony v Kruschich Demolitions (1985) 156 CLR 522

Medical treatment does not break the chain of causation unless “inexcusably

bad” or “completely outside the bounds of what any reputable

medical practitioner might prescribe”.

Knightley v Johns [1982] 1 WLR 349 Def caused accident that should

have closed tunnel. Pl negligently drove wrong way back down the

tunnel to close it and was injured. Held- Pl’s negligence broke the chain

SRA v Chu [2008] NSWCA 14Free, deliberate and

informed acts of criminal third party broke the chain

of causation.

Was the Def’s breach the legal cause?

State Rail Authority of NSW v

Wiegold (1991) 26 NSWLR 500: Pl suffered serious injury as result

of employer’s negligence. After he’d been injured but prior to trial, Pl convicted for cultivating indian

hemp. On appeal, Def not liable for losses Pl sustains from rational and

voluntary decision to engage in criminal activity.

Meah v McCreamer [1985] 1 All ER 367:

Pl suffered brain injury and committed brutal rapes 2 yrs later. Pl entitled to recover damages for

life imprisonment imposed on him, pain and suffering and physical

effects of brain damage.

• Legally significant causes• Policy and value judgments involved: see for eg. Wallace v Kam.

Meah v McCreamer (No 2) [1986] 1 All ER 943: The guy could not recover contribution from tortfeasor for damages paid to rape victims. Claim dismissed as damage too remote and for public policy reasons. Woolf J held that a criminal could not render another person liable for the consequences of his own wrongdoing.

Some great

case

examples!

3rd Element of Negligence Summary:

Causation: CLA s 11 (Qld).

• Step 1: Factual Causation – “necessary condition” test s 11(1)(a)• “but for” test• “Exceptional cases” – s 11(2)

• Step 2: Scope of Liability s 11(1)(b)• Reasonable foreseeability of kind of damage• Egg shell skull rule• Intervening causes – novus actus interveniens

Both limbs must be satisfied.s.12: Pl bears onus of proof in causation

Review

In this module you have learned to:• Understand the ways in which the Civil Liability Act has affected factual

causation at common law;• Understand what is required to establish both factual causation and scope

of liability; • Apply the legal rules and principles of causation and remoteness (scope of

liability) to factual scenarios; • Understand the conceptual and practical difficulties that may arise in proving

a causal link between a negligent breach of duty and damage; • Describe and assess how courts have addressed issues of material

contribution, exceptional cases and loss of chance; and• Describe and assess the ways in which the law deals with multiple causes,

alternative causes, and intervening causes.

Acknowledgements – References

• Danuta Mendelson, The New Law of Torts (2nd ed 2010), published by Oxford University Press.

• Rosalie Balkin and Jim Davis, Law of Torts (4th ed, 2009) published by LexisNexis Butterworths.

• Julia Davis, Connecting with Tort Law (2012) published by Oxford University Press.• Bernadette Richards, Karinne Ludlow and Andy Gibson, Tort Law in Principle (5th ed,

2009) published by Thomson Reuters Lawbook Co.• Frances McGlone and Amanda Stickley, Australian Torts Law (2nd ed 2009)

published by LexisNexis Butterworths.• Martin Davies and Ian Malkin, Torts (Focus Series, 6th ed, 2012) published by

LexisNexis Butterworths.• Carolyn Sappideen, Prue Vines, Helen Grant and Penelope Watson, Torts

Commentary and Materials (10th ed, 2009) published by Thomson Reuters Lawbook Co.

• Sarah Withnall Howe, Greg Walsh and Patrick Rooney, Torts (LexisNexis Study Guide, 2nd ed, 2012) published by LexisNexis Butterworths.