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CAUSATION Onus of Proof Factual Causation

CASE Civil Liability Act 2002 5E Civil Liability Act 2002 5D

Adeels Palace v Moubarak

FACTS ISSUES SIGNIFICANCE RULE In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilites, any fact relevant to the issue of causation. (1) a determination that negligence caused particular harm comprises the following elements(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would hav done if the negligent person had not been negligent(a) the matter is to be determined 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  Patron left restaurant On the balance of “It was not shown to be - “Nor did the evidence show and was struck in the probabilities, would the more probable than not that security personnel would face= returned with a P’s have been injured but that, but for the absence have prevented re-entry by th gun and shot Mr Bou for the lack of security of security personnel, the gunman: a determined person Najem and Mr provided by the restaurant? shootings would not have armed with a gun and Moubarak in the taken place.” irrationally bent on revenge.” stomach - “That is, the absence of  Moubarak sued adeels security personnel at Adee alleging their injuries Palace on the night the were as the result of plaintiffs were shot was no adeels negligence in a necessary condition of failing to provide their being shot. Because security

the absence of security personnel was not a necessary condition of the occurrence of the harm to either plaintiff, s 5D(1) wa not satisfied.”

Strong v Woolworths

 P= leg amputee who walked with crutches,

Would P’s slip on D’s It was unknown when the premises, on the balance of chip was dropped BUT

“it follows that a D’s neglige act or omission which is

slipped on a chip left on the floor of a shopping centre near a food court

probabilities, not have occurred if D had not failed to enact a system of detecting and removing slippery surfaces? Whether there was evidence that if the respondent had employed a proper system more probably than not it would have prevented P’s injury.

High court accepted P’s view that it was during a longer period of the day when a system of inspection would have likely detected such a substance and thus prevented her injury

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Amaca Ltd v Ellis

Wallace v Kam

 Negligent exposure to asbestos case

 P sought medical assistance in relation to lumbar spine= underwent a surgery with inherent risks  Surgery was unsuccessful in helping his spine and P

P must show that it was more probable than not that but for his negligent exposure to asbestos, he would not have contracted fatal lung cancer

P only showed that exposure to asbestos MAY have caused his cancer NOT that it PROBABLY caused it

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But for Dr Kam’s negligent failure to warn Mr Wallace of the risks, would his injury still have occurred?

Court found that even if Dr Kam had warned Mr Wallace of the risk= he still would have undergone the surgery  Breach not a necessary condition of Mr Wallace’s harm

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necessary to complete a set o conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation…” “Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred.” “A necessary conditions is on that cannot be dispensed with.” “it showed only a mere possibility of causation. Specific causation requires more.” “Observing only that exposu to asbestos may have been a cause does not answer the question [of causation] affirmatively.” “What the patient would hav done is to be determined subjectively in the light of al relevant circumstances…” “Mr Wallace should not be compensated for the materialisation of a risk he would have been prepared to

Legal Causation

Civil Liability Act 2002 s 5D(1)(b)

The Wagon Mound No.1

Hughes v Lord Advocate

suffered temporary accept.” nerve damage to thighs= severe pain 1(b) That it is appropriate for the scope of the negligent person’s liability to extent to the harm so caused (scope of liability) 4 For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether o not and why responsibility for the harm should be imposed on the negligent party. Harm of a foreseeable - “But the only liability that is  D shouldn’t be liable for ALL direct kind in question is the liability for consequences of their negligence= only damage by fire. It is vain to responsible for those a reasonable person would  It was reas foreseeable that the isolate the liability from its have foreseen which was not different in kind oil spill could have context and to say that B is o caused pollution is not liable and then to ask f events, not ones what damage he is liable.” involving fire= very - “It would be wrong that a ma difficult to ignite should be liable for damage unpredictable by a reasonabl man because it was ‘direct’ o ‘natural’, equally it would be wrong that he should escape liability, however ‘indirect’ t damage, if he foresaw or could reasonably foresee the intervening events which led to its being done…” Whether the Kind of harm not  2 boys entered work - “But a defender is liable, site and knocked over unforeseeable/exceptional manner in which it although the damage may kerosene lamp into a nature of the explosion occurs be a good deal greater in hole= explosion (manner in which the harm NO= kind of harm was extent than was foreseeabl occurred) = defence for foreseeable from the risk He can only escape liabilit causation of the lamp

if the damage can be

Nader v Urban transit Authority NSW

10 yr old developed The Eggshell Skull rule Ganser syndrome= rare  if a person with an psychological condition ‘eggshell’ skull and following a minor accident is struck on the head  D contented that the and suffers injury cause of the syndrome which would not was due to his home have occurred to a environment= overnormal person with a protective parents regular skull= it  Court found that not cannot be said that only must D take P as by a D that the P had he found him but also some pre-existing the family context in susceptibility and which he lived

therefore the D could never have foreseen the extent of the harm that could have occurred to them= could not foresee therefore not liable

Kind of harm not extent of it

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regarded as differing in kin from what was foreseeable…This acciden was caused by a known source of danger, but cause in a way which could not have been foreseen, and in my judgement that affords no defence.” “it is settled law that the defendant must take the plaintiff as he finds him… “I think that the defendant must take the plaintiff with all his weaknesses, beliefs and reactions as well as his capacities and attributes, physical, social and economic.” “Justice to the defendant is fulfilled by the requiremen that the plaintiff must belong to the class of persons whom the defendant can reasonably foresee may be injured by his carelessness and by the requirement of a causal connection between the negligence and the

plaintiff’s condition…” Kavanagh v Akhtar

Chapman v Hearse

 P’s shoulder was injured when employees of D dropped heavy box on her= 6 months later had difficulty brushing and cut her hair  Provoked extreme reaction from husband= break-up of marriage resulting in P’s severe depression

D is responsible for all damage of the same type or kind as that which was reasonably foreseeable, even if the particular damage, or its extent, were not reasonably foreseeable, or the damage occurred in an unexpected or unforeseeable manner (Chapman v Hearse 120/121)

 Did Hearse’s negligence severe the causal chain between Chapman’s negligence and the death of Dr Cherry?  D2’s subsequent act of negligence will not necessarily break the causal chain if that later negligence was foreseeable to D1= question of fact and degree

 The risk of injury caused by the original act of negligence was real and substantial and not remote and fanciful

Kind of harm not extent of it

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Supervening Acts: breaking the causal chain

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“I see no reason why the appellant should not take the respondent in the famil and cultural setting that sh lived.” “His honour pointed out that it was not necessary that the defendant should have foreseen the precise nature of the consequences It was sufficient that he should have foreseen consequences of the same general character as that which followed.” “On principle, it is impossible to exclude from the realm of reasonable foresight subsequent intervening acts merely on the ground that those acts, when examined, are found to be wrongful.” “Once it be established tha reasonable foreseeability is the criterion for measuring the extent of liability for

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damage the test must take into account all foreseeabl intervening conduct whether it be wrongful or otherwise…” “In these circumstances, w have no doubt that Chapman’s negligence mu be regarded as a cause of D Cherry’s death and since, for the reasons which we have given, some casualty of that character was withi the realm of reasonable foreseeability the judgeme against Chapman should stand.” “…there is no occasion to consider reas fore on the part of the particular wrongdoer unless and unti it appears that the negligen act or omission alleged has in fact, caused the damage complained of…the term ‘reas fore’ is not, in itself, test of ‘causation’; it mark the limits beyond which a wrongdoer will not be held responsible for damage

resulting from his wrongfu act.” Mahony v Krushchich Demolitions

 Later negligence was  Conditions in which a D may escape that of a medical liability despite practitioner contributing directly providing treatment to the P’s harm to the injured because a second D person= degree of broke the causal link negligence required to remove the  D1 who is a necessary condition resulting loss from of harm cannot the scope of the escape liability if the original tortfeasor’s later act of liability was very negligence by D2 high was foreseeable to  Employee sued them but yes if it employer for injury, wasn’t foreseeable to employer sought them contribution from the medical practitioner who he argued contributed to the P’s ongoing injury due to his negligence

Supervening Acts: breaking the causal chain

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“A negligent tortfeasor doe not always avoid liability for the consequences of a plaintiff’s subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor’s negligence.” “A line marking the boundary of the damage fo which a tortfeasor is liable in negligence may be draw either because the relevant injury is not reasonably foreseeable or because the chain of causation is broke by a novus actus interveniens.”...