Causation and Remoteness of Damage

1. s.5E onus of proof on Ptf on BoP codified BoP by CL (Gett) and

causation (Coca Cola)
2. s.5D(1)(a) of CLA The negligence was a factual causation
necessary condition (but for test, common sense test, policy
considerations; March v Stramare)
o

But for (March v Stramare)

Common sense (Medlin)

Actus novus interveniens (Champman v Herse)

In order for D to be held liable to P for negligence

o P must show causal connection between Ds
conduct and damage suffered by P.
o Causation is a question of fact look at the facts
of the case
Only element where reasonable
foreseeability is not used.

But for test would P have been injured BUT FOR defendents negligence?
- Barnet Husband would have died anyway
- March v Stramare But for test cannot be exclusive criterion for causation
limited to where there is one identifiable cause. Must be combined with value
judgements and policy considerations + common snse
Common sense is it common sense that P would not be injured if it werent for Ds
neg?
- Medlin D was responsinle for his loss of earning capacity despite him
voluntarily retiring
Novus Actus interveniens itnerventiong unrelated act breaks causal link between
Ds neg and Ps loss
- Volutnary act by P or third party
-

Own negligence

o
o

Chapman v Hearse: argued that Hs negligent driving severed

Chapmans earlier negligence and Dr Cherrys death. Held:
rejected argument
March v Stramare: look at risks created by Ds negligent act, then
look at whether 2nd negligence is the very risk likely to
materialise in the ordinary course of things.

Medical treatment
o Mahony v Kruschich

Material cause
Multiple causes
- Subsequent injury
o Baker
Held: D1s damages not reduced by D2, but not liable for
additional loss.
o Jobling

Did not apply Baker D may rely on vicissitudes

principle to reduce damages in place as they would have
without Ds tort.
Where later even it not tortious e.g. illness

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 defendants conduct was a cause of the plaintiffs 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 defendants 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 defendants act is a cause of the plaintiffs 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 defendants 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

Some general considerations

Causation in fact and remoteness of damage in law as distinct questions.
The principles of remoteness of damage as a policy limitation on the
liability of the defendant for damage caused to the plaintiff.

Before a case can be left to the jury, the plaintiff must discharge the prelim task
of submitting direct or circumstantial evidence which tends not only to show
how the accident happened but which also permits a reasonable finding that
the defendant's conduct had some effect in producing the injury
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 have prevented or
minimized the damage
While continuing to maintain that the legal burden of proving causation remains
throughout the proceedings on the plaintiff, the HC nonetheless appears to
have accepted that the evidentiary onus may shift, in the sense that the
plaintiff has proved a breach of duty by the defendant and can establish that
the breach increased the risk of injury and that risk eventuated, the
defendant will be held liable in the absence of proof of an alternative cause
Every occurrence is the result of many causal conditions which are jointly
sufficient to produce it. For any kind of occurrence there may be more than
one complex set of conditions, each set of which is jointly sufficient to
produce that occurrence.
To determine the factual cause of an injury is but the first step in any causal
analysis. Once this has been ascertained, the need arises to determine for
which consequences of the tort a defendant is answerable, or as it is often
put, to decide whether the injury or damage is not too remote a consequence
With increasing frequency since The Wagon Mound, the court says that the
defendant may be liable even though he or she could not envisage the precise
set of circumstances which produced harm of the foreseeable kind. What must
be foreseen is injury of a given description - the genus - rather than the
precise injury which occurred - the particulars
If plaintiff established that defendant owed him/her duty of care and
there was a breach of that duty is there a causal connection
between the defendant's breach of duty and the plaintiff's injury?

Causation poses an interrelationship of its own. There is a causal connection

with requirement that there be causation proven and the relevant head
of damages that is being sought. Connection between causation,
damage and damages. Test for causation is NOT REASONABLE
FORESEEABILITY.

Causation
a)

A question of fact; "but for" test; common sense

principles; value judgements; policy.

Barnett v Chelsea Hospital [1969] - ARSENIC

Mr Barnett was a night watchman at the Chelsea College of Arts and Sciences. He
was on duty on New Years Eve. Hit over the head with iron bar. Taken to
hospital St Stevens operated by Chelsea Hospital
Told he would need to return at 9.45am on new years day, no doctor to perform
x-ray that night. The night nurse emphasized that would be good idea if he
stayed and waited but Mr Barnett didn't want to lose money so he returned
to job by about 5am.
Having done their inspection the three night watchmen sat down to have a thermos
of tea. They began to vomit violently. At 8am things got so bad he went back
to St Steven's hospital. The nurse assumed that he being a working class
person was drunk and suggested he stay at hospital at 9.45am for
appointment with x-ray. He didn't want to do that so he left.
Failed to come back for appointment because when went back to job kept
vomiting. At 1pm he was found on a bench at the College, found passed
out and ambulance was called. Went to hospital and declared dead
Mr Barnett and two watchmen had been poisoned with arsenic

Mrs Barnett brought proceedings - was hospital negligent in failing to treat Mr

Barnett?
Clear this case not concerned with issue of duty. Hospital owed duty to diagnose
and to treat Mr Barnett. (Rogers)
This wasn't a case about breach either - clear on any analysis that hospital
breached duty to Mr Barnett and failed to investigate problem properly.
Not sufficient for night nurse to conclude he was drunk. Further investigations
given severity duration of symptoms were needed to go into
But causation? Causal connection with hospital's breach of duty and injury
suffered by Mr Barnett (his death). CAUSATION IS A QN OF FACT.
The most relevant fact - arsenic poisoning would require treatment within
1-2 hours. He ingested arsenic at 5am, didn't present to hospital of
8am. This meant he was beyond point where could have been rescued. Even
though there was a duty and had been breached, no causal connection with
breach of duty and injured suffered by him (death).
o

By time he went to receive substandard treatment he was already going to

die. If he had turned up to hospital in 1-2 hours hospital may not have been
liable as would have needed time to diagnose he was poisoned by arsenic

NY Day - might think drunkenness was first point of call, before look at arsenical
poisoning
Hospital still had time to diagnose that which had been wrong
Simply because duty/breach is not determinative if defendant liable to
plaintif. Has to prove causal connection with defendant's
duty/breach

Causation March and Strumere

Medlin v State Government Insurance Commission

(1995) - PROFESSOR
COMMON SENSE TEST
Principle of Law: The causal inquiry is essentially one of fact to be resolved as a
matter of common sense and experience.
By reference to these criteria, the negligence of a tortfeasor which caused the
plaintiff personal injury remained a cause of the plaintiff's financial loss
after his post-injury voluntary early retirement.

Facts:
Medlin was a Professor of philosophy at a University. He was injured in a motor
accident at 56 years of age by the negligence of a driver insured by the
defendant (State Gov Insureance). The plaintiff took voluntary early
retirement soon after turning 60 even though he was not due to retire until
65.
The trial judge, Debelle J, awarded him an amount of damages which did not
include any component for loss of earning capacity for the four years plus
remaining of his employment
He voluntarily retired and therefore was not given loss of earning capacity
o The plaintiff's appeal claiming for that component of loss of
earning capacity was dismissed by the Full Court of the Supreme
Court of South Australia
o Appealed to High Court which allowed the appeal
Was the decision by Prof Medlin a voluntary act on his part which broke the
chain of causation between the insurer responsible for the vehicle in the
motor accident and damage done to Mr Medlin?
Held

For the purposes of the law of negligence, the qn whether the requisite
causal connection exists between a particular breach of duty and a
particular loss of damage is essentially one of fact to be resolved, on the
balance of probabilities, as a matter of common sense and experience
o 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 connection
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 of damage
o Nor can the question of causation of damage in a negligence action
be automatically answered by classification of operative causes as
"pre- eminent" or "subsidiary"
o Regardless of such classification, two or more distinct causes,
without any one of which the particular damage would not have
been sustained can each satisfy the law of negligence's common
sense test of causation
o This can be most obviously so in a case where a 'subsidiary' cause
operates both directly as a cause of the particular damage and
indirectly as a contributing component of a 'pre-eminent' cause

In these circumstances, the relevant question was not whether the

plaintiff 'should' have continued in his University post or whether his decision
to retire was not 'reasonable' but whether, in the context of what was
reasonable between the plaintiff and the plaintiff's employment was the
product of the plaintiff's loss of earning capacity notwithstanding that it was

brought about by his own decision to accept voluntary retirement

o Any question of reasonableness should be framed in terms of what is
reasonable as between the plaintiff and the defendant in the context of
assessing damages for negligence rather than as a question of whether
the plaintiff acted reasonably or unreasonably in resigning his post
McHugh J: "If the plaintiff had not been injured, he would have had the capacity to
pursue his research work while carrying out his other duties. The plaintiffs
early retirement was, therefore, the result of his accident-related
complaints and causally connected with the defendantIs negligence in the
'but-forI sense."
Appeal allowed.
So - causal connection with injury and loss of earning capacity. Simply because the
decision was voluntary does not mean there was a break in the chain
of causation (McHugh J: "It does not seem to me the matter in this case
whether the plaintiffs act of early retirement is attached as a voluntary act
that was a novus actus interveniens or as a failure to mitigate loss. His
retirement would be a novus actus interveniens or a failure to mitigate loss
only if it was unreasonable in all of the circumstances"). But for the car
accident he would not have found his job harder to do. Early retirement
was not unreasonable because it was caused by the defendant's negligence.
Need to establish causal connection with each head of damages, and
shows the difficulty that courts have in seeing if intervening acts
break the chain of causation.

March v E & MH Stramare (1991) 171 CLR 506 FRUIT

TRUCK
BUT FOR TEST
Principle of Law: Causation is determined by applying the 'but for' test as well as
common sense principles to the facts of the case. Value judgement and
considerations of policy also have a role to play in the context of causation.
Facts:
o The appellant sued to recover damages for personal injuries sustained when
the offside of the front of his motor vehicle struck the nearside rear of the
tray of a truck, owned by the 1st respondent, parked along the centre line of
o

o
o
o

o
o

Frome St, Adelaide

The second respondent had parked the truck in that position for the
purpose of loading it with large wooden bins containing fruit and
vegetables from premises in Frome street where the first respondent
carried on business as a wholesale fruit and vegetable merchant
The appellant was travelling south in the lane closest to the centre line of the
road, there being three southbound lanes
The rear of the truck, with its parking/hazard lights illuminated, faced the
southbound traffic and about one-half of the width of the truck projected into
the lane in which the appellant was travelling
The primary judge (Perry J) found that the appellant was intoxicated at the time
to such an extent that his ability to judge speed (including his own speed) and
distance, his eye functions, his coordination and reaction times, and his vision
while attending to the controls of the car were impaired so substantially that:
Although the parking and hazard lights of the truck were illuminated, the
second respondent should have appreciated that the parked vehicle might, in
some circumstances, constitute a danger to oncoming vehicles
Accordingly, the second respondent was negligent in parking the truck in the
middle of Frome Street and the appellant was guilty of contributory negligence
in driving when his faculties were impaired by alcohol, in driving through the
preceding intersection of Frome Street and rundle Street at a speed exceeding

o
o

60km/h, in failing to see the truck and in failing to veer past the truck
Liability was apportioned 70% against appellant and 30% against the
respondents
In allowing the appeal, the majority in the Full Court (Bollen and Prior JJ) held
that the second respondent's negligence was not causative of the appellant's
injuries, the negligence of the appellant being the 'real cause'

Held:
Mason I

In law, problems of causation arise in the context of ascertaining or

apportioning legal responsibility for a given occurrence
o Thus a person may be responsible for damage when his or her
wrongful conduct is one of a number of conditions sufficient to
produce that damage

A wrongdoer is liable for the consequences of his or her wrongful

conduct which have been variously described as 'direct,' 'natural and
probable,' 'direct and natural,' when the wrongful act is the 'proximate
cause,' or the 'real effective cause'

In Chapman v Hearse, the HCA said the term reasonably foreseeable is not
a test of causation; it marks the limits beyond which a wrongdoer will not
be held responsible for damage resulting from his wrongful act

In ordinary circumstances, the plaintiff was defeated by the defence of

contributory negligence when his or her negligence was an effective cause
of his or her injury, notwithstanding that the defendant's negligence was
also an effective cause of that injury

According to the 'last opportunity' or 'last chance' rule, the plaintiff was
entitled to recover, despite his or her own negligence, if the defendant had
the last opportunity of avoiding the accident but failed to do so due to
negligence. The result achieved by the application of the rule was explained
in the language of causation: the defendant's later negligence broke the
chain of causation so that the defendant's negligence was left as the
effective cause of the plaintiff's injury
o
The last opportunity rule served only to confuse even further the legal
concept of causation because it did not apply as between co- defendants, so
that a failure by one defendant to avail himself or herself of a last
opportunity to avoid the accident did not prevent the negligence of the
other defendant from being the effective cause of the plaintiff's injury
o Court has largely rejected this rule the last chance rule

The end result of the apportionment legislation was not only to abolish
the defence of contributory negligence but also the last opportunity rule

The law's recognition that concurrent or successive tortuous acts may

each amount to a cause of the injuries sustained by a plaintiff is reflected in
the proposition that it is for the plaintiff to establish that his or her injuries
are "caused or materially contributed to" by the defendant's wrongful
conduct
o The causal connection is established if it appears that the plaintiff
would not have sustained his or her injuries had the defendant not
been negligent. But it is often very difficult to demonstrate what would
have happened in the absence of the d's negligent conduct

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, applied as a negative criterion of causation, has an

important role to play in the resolution of the question
o It 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
o The application of the test proves to be either inadequate or
troublesome in various situations where there are multiple acts or
events leading to the plaintiff's injury
The lesson of experience, namely that the test, applied in an exclusive criterion
of causation, yield unacceptable results and results which it yields must be
tempered by making of value judgments and infusion of policy considerations

 That in itself is something of an irony because the proponents of the 'but for'
test have seen it as a criterion which would exclude the making of value
judgments and evaluative considerations from causation analysis

The 'but for' test does not provide a satisfactory answer in those cases in
which a superseding cause, described as a novus actus interveniens, is said to
break the chain of causation which would otherwise have resulted from an
earlier act
o The fact that the intervening action is a deliberate or voluntary
does not necessarily mean that the plaintiff's injuries are not a
consequence of the defendant's negligent conduct
o In some situations a defendant may come under a duty of care not to
expose the plaintiff to a risk of injury arising from deliberate or
voluntary conduct or even to guard against that risk

It has been said that the fact that the intervening action was foreseeable
does not mean that the negligent defendant is liable for damage, which
results from the intervening action .. But it is otherwise if the intervening
action was in the ordinary course of things the very kind of thing likely to
happen as a result of the defendant's negligence

As a matter of both logic and common sense, it makes no sense to regard

the negligence of the plaintiff or a third party as a suspending cause or novus
actus interveniens when the defendant's wrongful conduct has generated the
very risk of injury resulting from negligence of plaintiff or a third party and
that injury occurs in the ordinary course of things
o In such a situation, the defendant's negligence satisfies the
'but for' test and is properly to be regarded as a cause of the
consequence because there is no reason in common sense,
logic or policy for refusing to so regard it

In these circumstances, the respondent's negligence was a

continuing cause of the accident. The chain of causation was not
broken by a novus actus. Nor was it terminated because the risk of
injury was not foreseeable, on the contrary, it was plainly
foreseeable
Deane J

It is clear that the second respondent was in a relationship of proximity

with other users of the road on which he left the truck. That relationship gave
rise to a duty to take reasonable care to avoid foreseeable injury to such
other road users. That relationship and that duty of care were not confined to
persons who were careful and sober but extended to all foreseeable users of
the road, including bad and inattentive drivers and those whose faculties
were impaired either naturally or by reason of the effect of alcohol

The case is one in which there was fault on both sides and in which, in
the context of apportionment legislation, the accident must be seen as the
result not only of the negligence of the appellant in driving his own vehicle
but also of the negligence of the second respondent in parking the truck in
breach of the duty of care which he owed a class of persons of which the
appellant was a member

Causation arises in the context of the attribution of fault or responsibility

whether an identified negligent act or omission of the defendant was so
connected with the plaintiff's loss or injury that, as a matter of ordinary
common sense and experience, it should be regarded as a cause of it
o The 'but for test' may well be a useful aid in determining
whether something is properly to be seen as an efective cause
of something else in that sense. There are however reasons
precluding its adoption as a comprehensive definitive test of
causation
1. First, the clear weight of authority is against the substitution of such a
formularized test of causation
2. Secondly, unqualified acceptance of the 'but for' test as even a negative or
exclusionary test of causation for the purposes of the law of negligence would
lead to the absurd and unjust position that there was no 'cause' of an injury in
any case where there were present two independent and sufficient causes of
the accident in which injury sustained
3. Thirdly, the mere fact that something constitutes an essential condition of an
occurrence does not mean that, for the purposes of ascribing responsibility or

fault, it is properly to be seen as a cause of that occurrence as a matter of

either ordinary language/common sense
o It is true that, in the context of apportionment legislation which gives the
latitude necessary to enable the relief to be fairly adjusted to fit the
circumstances, the courts will be unlikely to deny causation in any case
where the fault of a defendant contributed to an accident
o Nonetheless, the question whether conduct is a 'cause' of injury
remains to be determined by a value judgement involving ordinary
notions of language and common sense
McHugh J

A person may be causally responsible for damage even though his or her
act or omission was one only of the conditions or relations sufficient to
produce the damage
o If the damage would have occurred notwithstanding the negligent act
or omission, the act or omission is not a cause of the damage and
there is no legal liability for it

When the damage suffered by a plaintiff would not have occurred but for
negligence on the part of both the plaintiff and the defendant, a conclusion
that the defendant's negligence was not a cause of the damage cannot be
based on logic or be the product of the application of a scientific or
philosophical theory of causation
o It has to be based upon a rule that enables the tribunal of fact to make
a value judgement that in the circumstances legal responsibility did
not attach to the defendant even though his/her act or omission was a
necessary precondition

Such a rule is concerned only with the question whether a person should
be held responsible for an act or omission which ex hypothesi was necessarily
one of the sum of conditions or relations which produced the damage ..
Further.. if the 'but for' test is applied in a 'practical common sense' way it
enables the tribunal of fact, consciously or unconsciously, to give effect to
value judgments concerning responsibility for the damage.

If the 'but for' test is applied in that way, it gives the tribunal an unfettered
discretion to ignore a condition which was in fact a precondition of the
occurrence of the damage
In cases with expert evidence called to explain a connection with an act or
omission/occurrence of damage - educative effect of expert evidence makes
an appeal to commonsense notions of causation largely meaningless or
produces findings concerning causation which would often not be made by an
ordinary person uninstructed by expert evids
To hold a person liable for damage resulting from a set of conditions or relations
simply because his or her wrongful act or omission was a necessary condition
of the occurrence of that damage would be an unacceptable extension of the
boundaries of legal liability in some cases
The preferable course is to use the causa sine qua non test as the
exclusive test of causation
o One obvious exception to the rule must be the unusual case where the
damage is the result of the simultaneous operation of two or more separate
and independent events, each of which was sufficient to cause the damage
In general however the but for test should be seen as the test of legal
causation. Any other rule limiting responsibility for damage caused by a
wrongful act or omission should be recognized as a policy-based rule
concerned with remoteness of damage and causation
Appeal allowed.
HC EMPHASISED THAT PURPOSE OF ASKING TEST OF CAUSATION AND TEST TO
BE APPLIED ARE PRAGMATIC. WE WANT TO ATTRIBUTE LIABILITY AND FIX
PEOPLE TO RESPONSIBILITY, DIFF TO SCIENCE/PHILOSOPHY.
Last chance/opportunity rule: who had
the last chance or opportunity to

avoid harm occurring to the

plaintiff?

If the defendant did - they are

causally responsible
Con neg acts as a complete
defence: this has now changed by
way of statute. Have
apportionment

'But for' test debate with Deane and

McHugh - can it be the exhaustive
test? McHugh claims it can,
Deane/Mason want another
test and point put the
limitations.
Strict application - p could fail to prove
that wholly responsible for damage
suffered. Also multiple causes.
Mason/Deane - preferred view of
HC at CL is the 'common sense
test.' It is broad and diffusive.
Whether as a matter of fact can be
said that normative inquiries also
play a part. Not asking if d is liable,
law answering the question:
SHOULD the d be held causally
responsible for the d's harm caused
to the plaintiff?

How do we determine the defendant's liability? Is the defendant

causally responsible or is the defendant the sole cause of the harm?
Our system recognizes multiple tortfeasors can be the sole cause of harm
(weaker) - you can be causally responsible if you are a
cause/contributing factor. Plaintif can then recover 100% of damages
against that defendant or open to choose one defendant or another.

Chappel v Hart (1998) 195 CLR 232 - ESOPHAGUS

Principle of Law: The negligence of a medical practitioner in failing to warn a
patient of an inherent risk in a surgical procedure may be treated as a
cause of the injury suffered by the patient when the risk materializes.

Facts:
Respondent (P), Mrs Hart, sued the appellant (D), Dr Chappel, a medical
practitioner, in respect of an injury sustained by her during surgery, on the
basis of his failure to warn her of the risk of such an injury.
o Throat surgery. She had a degenerative condition which was going to get
worse and required an operation so she decided to do it sooner rather than
later. Dr Chappel was recommended to her
When surgery was conducted the esophagus was perforated. No suggestion that
there was poor/unreasonable treatment on the part of Dr Chappel. He
exercised all due skill and care. But due to the delicate nature of the surgery,
there was a risk of perforation to the esophagus. It led to an infection taking
hold and her losing most of her voice.
o Risk was inherent in procedure, nothing could have been done to avoid
the risk of perforation.
Surgeon failed to warn her of the material risk inherent in procedure and she
said that if she had been warned she would have delayed the surgery to a
later time to secure the services of the best surgeon
Was there a causal connection with the Failure to warn and harm
suffered?
Held:
Gaudron J

The argument, which asserts that the harm suffered by Mrs hart
resulted from the "random risk" of infection which eventuated and her
"voluntary willingness to undertake that risk" must be rejected.
o It treats the infection which occurred as a supervening event breaking
the chain of causation which would otherwise begin with Dr Chappel's
failure to inform Mrs Hart of the possible consequences in the event of
perforation and subsequent infection
o It is contrary to common sense to treat part of the very risk which
called the duty into existence as a supervening event breaking the
chain of causation beginning with the breach of that duty
Gummow J
Here, the injury to Mrs Hart occurred within an area of foreseeable risk
In the present case, the obtaining of adequate advice as to the risks
involved was a central concern of Mrs Hart in seeking and agreeing to
undergo the surgical procedure in question
The chain of causation can be seen from the facts found to have
intervened between the negligent omission of the appellant and the
injuries sustained by the respondent
Difficult for someone in failure to warn cause says no causal connection
when what failed to warn about was the risk that was materialized.
Kirby J
They were risks inherent in the procedure, not wholly avoidable even by the
most skilful and experienced of surgeons
There is a duty imposed on a medical practitioner to inform a
patient about material risks involved in treatment. A risk is
material if a reasonable person, the circumstances, would
attach significance to it" (Rogers v Whitacker)
Once Mrs Hart showed the breach and the damage which had
immediately eventuated, an evidentiary onus lay upon Dr Chappel to
displace the inference of causation which thereupon rose
This was not an ordinary patient. It was inquisitive, persistent and anxious

one who was found to have asked a particular question to which she
received no proper answer.
o Had a proper answer been given, as the law required, it was found
that she would not have undergone the operation at the hands of Dr
Chappel when she did. It is virtually certain then, that she would not
have suffered mediastinitis at all. She would not have been injured.
She would not have been obliged to bring her case before the
courts. She therefore adequately proved causation.
There was a causal connection between defendant's failure to warn of a
risk of harm and the plaintiff's harm because what was failed to be
warned about was the risk that was materialized.
Appeal dismissed.

Tabett v Gett (2010) BRAIN TUMOR

(cannot circumvent requirement to prove causation of damage on the balance of probabilities by
proving an increased chance of less than 50%)
Facts
1. The appellant was admitted to hospital again when he suffered vomiting and
headaches on 11 January 1991.
2. She had been admitted to hospital not long ago from varicella.
3. A CT scan taken on 14 January revealed that she had a large brain tumour.
4. The damage contributed to the severe, irreversible brain damage and
consequently disability which the appellant now suffers.
5. The appellant claimed respondent pediatrician breached duty by failing to order
CT scan at particular earlier time, for which she might had been deprived of the
chance of a better outcome by reason of the delay in the treatment she could have
received.
6. Evidence showed that breach caused loss of 40% chance of better outcome.
Held
Liability based on breach of duty of care without proven loss or harm will not suffice.
The common law requires proof, by the person seeking compensation, that the
negligent act or omission caused the loss or injury constituting the damage. All that
is necessary is that, according to the course of common experience, the more
probable inference appearing from the evidence is that a defendants negligence
caused the injury or harm. More probable means no more than than, upon a
balance of probabilities, such an inference might reasonably be considered to have
some greater degree of likelihood; it does not require certainty.
To accept that a plaintiff s loss of a chance of a better medical outcome, where
the breach at best caused the loss of a less than 50% chance of a better outcome,
was a form of actionable damage would shift the balance struck in the law of
negligence between competing interests of claimants and defendants.
Judgment for defendant.

Strong v. Woolworths Limited [2012] - CHIP

it will often be enough for the issue of causation to be decided adversely to a defendant if it is
open to the court to find on the balance of probabilities that the plaintiffs injury would not
have occurred had the defendant complied with its duty of care.
The decision is an instructive example of how the courts decide issues of causation as
questions of fact based on the balance of probabilities and how the key question in any
inquiry into causation remains whether it was more probable than not that the defendants
breach was causative of the plaintiffs loss.
Facts
1. The respondent, Woolworth Ltd operated a Big W in a shopping centre at Taree.

2. On a day in late September 2004 at approximately 12:30 PM, the appellant,

Strong, slipped and fell on a hot chip outside the Big W store, in an area for which
Woolworths was responsible and close to a food court.
3. Strong suffered a serious spinal injury as a result of her fall.
4. At the time of the injury, Strong was already disabled, having had her right leg
amputated above the knee, and walked with the aid of crutches.
5. Strong's injury occurred when one of her crutches made contact with the hot chip.
6. Trial was for Strong, appeal reversed the decision of the trial. NSWCoA held for
Strong.
CoA

The principles governing the determination of causation in a claim for

negligence in New South Wales are set out in s 5D of the Civil Liability Act
2002 (NSW).
Section 5D of the Act relevantly requires that the negligence was a
necessary condition of the occurrence of the harm ("factual causation") and
that it is appropriate for the scope of the negligent person's liability to
extend to the harm so caused ("scope of liability").
The Court approached the causation question on the basis that reasonable
care in the circumstances required periodic inspection and necessary
cleaning of the sidewalk sales area at 15 minute intervals throughout the
day. The Court found that the likelihood was that the chip had been
deposited at lunchtime. On that basis, the Court considered that it could not
be concluded that, had there been a dedicated cleaning of the area every 15
minutes, it was more likely than not that the appellant would not have fallen.
Held
HC

The primary issue on appeal to the High Court was the correctness of the
Court of Appeal's conclusion on causation. The High Court held by majority
that, in the circumstances, it was an error for the Court of Appeal to hold
that it could not be concluded that the chip had been on the ground for long
enough to be detected and removed by the operation of a reasonable
cleaning system. The evidence did not permit a finding of when, in the
interval between 8.00am and 12.30pm, the chip was deposited in the
sidewalk area. Given this, the probability was that it had been on the ground
for more than 20 minutes prior to the appellant's fall. On the balance of
probabilities, therefore, the appellant would not have fallen but for
Woolworths' negligence.

b) New act or factor intervening (novus actus

interveniens)
Chapman v Hearse (1961) 106 CLR 112

Can Chapman recover contribution/indemnity from Hearse? Is there a duty of care

owed to Dr Cherry? There was a duty of care because if drive negligently, not
only reasonably foreseeable you will kill or injure people but that they will need
rescue
o But whether in terms of that duty to rescue extends to negligent conduct?
Was reasonable foreseeable that if you invite rescue by a rescuer, you might
expose that rescuer to danger and that danger is reasonably foreseeable
might occur to the negligence of others
Was there a causal connection with the injury caused to Dr Cherry by Chapman and
by Hearse? Chapman said that Hearse's driving broke the act. Hearse then
should completely indemnify Chapman for his liability to the Cherry estate

HC found that the negligent driving was not a new act intervening
("novus actus interveniens") to absolve Chapman of liability
BUT FOR Mr Chapman's negligent driving, Dr Cherry would not have been there
helping people. Hearse's negligent driving was not a new act intervening
which broke the original chain of causation
o Chapman's negligent driving was not negatived by Hearse's negligent
driving
"When the question is whether damage ought to be attributed to one of
several
'causes' there is no occasion to consider reasonable foreseeability on the
part
of the particular wrongdoer unless and until it appears that the negligent
act or omission alleged has, in fact, caused the damage
complained of. As we understand the term 'reasonably foreseeable' is not,
in 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.
Hearse's intervening act was negligentoThe appellant insists that the fact
that
Hearse's later act was wrongful operated to break the chain of causation between
his negligence and Dr Cherry's death. Why this should be so, however,
does not emerge but as far as we can see the submission rests solely
upon the general proposition that there should not be imputed to a
wrongdoer, as a reasonable man, foreseeability of subsequent
intervening conduct which is itself wrongful.
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 wrongfulo."
HC is emphatic that reasonably foreseeability is not an aspect of
causation. RF marks the limits of causational responsibility so long
as that damage is not too remote. RF informs the limiting principle
of remoteness which establishes the limits in extent of causal
responsibility.

Mahony v J Kruschich (Demolitions) (1985) DOCTOR

EXACERABTED
Principle of Law: A tortfeasor who negligently has caused personal injury to the
plaintiff may be liable for the exacerbation of that injury as the result of
negligent medical treatment by a third party.
Facts

A worker sued his employer for damages for personal injuries suffered in an
accident which he alleged was caused by the employer's negligence.
The injuries required considerable medical treatment

The employer, in his cross-claim, sought contribution, pursuant to

s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
from Dr Mahony, alleging that the doctor's negligence in treating the
worker had caused or contributed to the worker's contributing injuries and
incapacities
o S5(1)(c) provides "Where damage is suffered by any person as a result
of a tort . (c) any tortfeasor liable in respect of that damage may
recover contribution from any other tort feasor who is, or would if sued
had been, liable in respect of the same damage, whether as a joint
tortfeasor or otherwise"
Dr Mahony sought to have the cross-claim struck out, on the ground that
s5(1)(c) provides for contribution only between tortfeasors who have inflicted
'the same damage.' He argued that this was a case of different damage
inflicted at different times and that therefore there should be no contribution.

The Supreme Court of New South Wales allowed the cross- claim to stand. Dr
Mahony appealed.
On appeal to the HC, one of the issues was whether the allegedly negligent
employer could be liable to the worker for the damage caused by the
doctor's alleged negligence in treating him.

Held

A negligent tortfeasor does 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
o A line marking the boundary of the damage for which a tortfeasor is
liable in negligence may be drawn either because the relevant injury
is not reasonably foreseeable or because the chain of causation is
broken by a novus actus interveniens
But it must be possible to draw such a line clearly before a liability for
damage that would not have occurred but for the wrongful act or
omission of a tortfeasor and that is reasonably foreseeable by him is
treated as the result of a second tortfeasor's negligence alone
o Where it is not possible to draw a clear line, the first tortfeasor may be
liable in negligence for a subsequent injury and its consequences
although the act or omission of another tortfeasor is the more
immediate cause of that injury

Where an injury is exacerbated by the medical treatment, however,

the exacerbation may easily be regarded as a foreseeable
consequence for which the first tortfeasor is liable. Provided the plaintiff acts
reasonably in seeking or accepting the treatment, negligence in the
administration of the treatment need not be regarded as a novus actus
interveniens which relieves the first tortfeasor of liability for the plaintiff's
subsequent condition. The original injury can be regarded as carrying
some risk that medical treatment might negligently be given.
o Some degree of medical negligence in the treatment of an injury may
well be a reasonably foreseeable result of the act or omission by which
that injury was inflicted, and then no clear line can be drawn to limit
the original tortfeasor's liability to exclude the consequences of
medical negligence

However, in the ordinary case, where efficient medical services are available
to an injured plaintiff, the original injury does not carry the risk of medical
treatment or advice that is 'inexcusably bad' or 'completely outside the
bounds of what any reputable medical practitioner might prescribe'
or 'so obviously unnecessary or improper that it is in the nature of a
gratuitous aggravation of the injury' or 'extravagant from the point of view of
medical practice or hospital routine'

In such a case, it is proper to regard the exacerbation of a plaintiff's

condition as resulting solely from the grossly negligent medical treatment
or advice, and the fact that the plaintiff acted reasonably in seeking and
accepting the treatment or in following the advice will not make the
original tortfeasor liable for that exacerbation
Appeal dismissed.
If it is reasonably foreseeable that you injure someone it is
reasonably foreseeable that they will receive negligent medical
treatment for that injury. K could not say that negligent medical
treatment was a NAI for this injury - things that COULD break the chain of
causation include. In order for there to be a chain of causation it isn't
necessary that there is a second tortfeasor

Pitt Son & Badgery v Proluefco (1984) 1S3 CLR 644

?

Coca Cola Amatil (NSW) v Pareezer (2006) VENDING

MACHINE
Principle of Law: Tort law requires the plaintiff to establish that the defendant's
conduct was a cause of the plaintiff's damage.
Facts:
The plaintiff, Mr Craig Pareezer, was a contractor employed by the defendant,
Coca Cola Amatil Pty Ltd, to refill soft drink vending machines and collect the
coins which drink buyers had deposited in the machines
While attending to vending machines at Werrington TAFE during daylight and
in the presence of witnesses, the plaintiff was attacked and shot five times by
a robber described by Young CJ in Eq at [131] as "a person who had no regard
for human life and was prepared to take extreme risks for negligible financial
gain"
In respect of the injuries, the plaintiff brought a claim in negligence against the
defendant, alleging it had failed to take reasonable care for his safety

Held:
Assuming there had been a breach of duty by the defendant in respect of the
plaintiff's safety, e.g., in failing to provide extra training about risk
minimization or a diferent cash collection system, the breach was not
a cause of the plaintif's damage
In the particular circumstances of the present case, extra training about risk
minimization or a different cash collection system would not have averted the
plaintiff's damage
Mason P at [10] observed that the conduct of the robber in the present case had
been "particularly opportunistic and random in its viciousness"
In the result, the NSW CA allowed the defendant's appeal from a decision of Hulme
J who had awarded the plaintiff damages of $2.893 mill at trial

*Adeels Palace Pty Ltd v Moubarek (2009) NO

SECURITY
Facts
1. The defendant (appellant), Adeels Palace, carried on a reception and restaurant
business on licensed premises.
2. On New Years Eve, the premises were full of patrons, however, there were no
security personnel on the premises.
3. An accident occurred on the dance floor, precipitating a fight between a patron
and Mr Moubarak, the first plaintiff.
4. The patron left the premises but soon returned with a gun with which she shot the
first plaintiff, and the second plaintiff who was a random victim unconnected with
the earlier incident.
5. Both the two victims sustained injuries and sued the defendant in negligence for
not providing any or sufficient security at the function.
Held
HC concluded that the evidence at trial did not show that the presence of security

personnel would have definitively deterred the re-entry of the gunman.

Consequently, the HCA determined that the evidence did not show that security
personnel could or would have prevented re-entry by a determined person armed with
a gun and acting irrationally.
Unlike in Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294 those cases if you

could show that reasonable care provided would have prevented the occurance of the
injury.

The effect of this finding by the HCA was that the absence of security personnel at
Adeels Palace on the night the plaintiffs were shot was not a necessary condition of
their being shot, and thus the "but for" test (of causation) was not satisfied (Cf. s.5D of
the Civil Liability Act 2002 (NSW)).

Even if the presence of security personnel at the door of the restaurant might have
deterred or prevented the person who shot the respondents from returning to the
restaurant, and even if the security personnel on the floor of the restaurant might
have been able to intervene in the incident that broke into fighting in time to
prevent any injury, neither was reason enough to conclude that this was an
'exceptional case' contemplated by the CLA s5D(2) where responsibility for the harm
suffered by the respondents should be imposed on the appellant. To impose that
responsibility would not accord with established principles: [Modbury Triangle
Shopping Centre Pty Ltd v Anzil]: "[t]he conduct of criminal assailants is not
necessarily dictated by reason or prudential considerations."
As s 5D(1) shows, the "but for" test is now to be (and has hitherto been seen to be)
a necessary test of causation in all but the undefined group of exceptional cases
contemplated by s 5D(2).

c) Supervening and unrelated injury or illness

Baker v Willoughby [1970] BANK ROBBER

Mr Baker was run down, injured his left leg and could not work for a period of
time. Before his trial could come on he was in a bank and the bank was
robbed, in the course of the robbery Baker shot in left leg and as a result
had to have left leg amputated
Held
- A ruling to defendant would cause a "manifest injustice"
The injury he was complaining was loss of capacity because of the injury to his leg
and loss of earning capacity but now doesn't have that leg at all
LAW LORDS AWARE IF THEY GAVE DAMAGES FOR 1964-67 he would be
undercompensated, but if they gave him for loss of earning capacity for
after his leg was amputated he would be overcompensated
o Wanted to achieve practical justice - if we accept that he might be
overcompensated: think if the bank robber was sued (he would say
only responsible for loss of earning capacity of a person who had
already lost 50% of earning capacity for the injury of their left leg so
wouldn't be liable for 100%)
Not unfair to say he was overcompensated
They wanted to treat Mr W's negligent driving and bank robber's negligence as
concurrent causes for the damage to the leg - concurrent. The bank robber's
criminal cause was not a supervening act to relieve him of liability
You have to take your victim as you find them

Johling v Associated Dairies [1982] AC 794 BACK

INJURY
Principle of Law: Where the defendant negligently has caused personal injury
to the plaintiff, a supervening illness affecting the plaintiff (but unrelated to
the defendant's negligence) may be taken into account as
vicissitude of life negating or reducing the extent to which the
defendant's negligence remains a cause of the plaintiff's damage.
Facts

The plaintiff sustained a back injury at work, which rendered him fit for sedentary
work only. He commenced proceedings against his employers, the defendants
but in 1976, before the trial, it was discovered he had spondylotic
myelopathy which affected his neck and rendered him totally unfit for work.
This condition was unrelated and would have been dormant at the date of the
original accident.
When assessing damages for loss of earnings, the trial judge held that he was
bound, on the authority of Baker v Willoughby [1970] to leave out of account
the illness supervening after the accident
The CA, holdings that Baker v Willoughby was not applicable to a case involving a
non-tortious supervening event, set aside the assessment of damages and
held that the damages should be reduced to take into account the disability
suffered as a result of the disease
The plaintiff appealed
Are the respondents liable to pay damages for loss of earnings upon the basis of a
partial incapacity continuing throughout the period, which, in the
absence of the myelopathy, would have represented the balance of the
appellant's normal working life, or whether their liability was limited to loss of
earnings up to the time when the myelopathy resulted in total incapacity?
Held
Lord Keith of Kinkel

In Baker v Willoughby supervening conduct was tortious - plaintiff suffered

an injury to his left leg through the defendant's negligence, resulting in a
continuing disability which reduced his earning capacity. Before his case came
to trial he was shot by a robber in the same leg, which in consequence had to
be amputated. House of Lords held that the award of damages for loss of
earnings did not fall to be diminished because of later injuries because
represented a concurrent cause, along with original injury of disability
o Argued for the respondent (defendant) that the second injury
removed the very limb from which the earlier disability had
stemmed, and therefore no loss suffered thereafter could be
attributed to the respondent's negligence
o CONDUCT WAS TORTIOUS (criminal) - conduct by a human
Baker applied when second act is tortuous
Present case: alleged tortuous supervening act not tortuous and so a
diferent principle should apply. Illness was a supervening cause that so
overwhelmed the first defendant's negligence that he was no longer liable

Notable feature of Baker is the absence of any consideration of the

possible implication of the 'vicissitudes' principle . this principle is to be
applied in conjunction with the rule that the court will not speculate when it
knows, so that when an event within its scope has actually happened prior
to the trial date, that event will fall to be taken into account in the
assessment of damages

The assessment of damages for personal injuries involves a process of

restitution in integrum. The object is to place the injured plaintif in
as good as a position as he would have been in but for the
accident. He is not to be placed in a better position
o In considering how matters might have been expected to turn out if
there had been no accident, the 'vicissitudes' principle says that it is
right to take into account events, such as illness, which not
uncommonly occur in the ordinary course of human life. If such events
are not take into account, the damages may be greater than are
required to compensate the plaintiff for the effects of the accident, and
that result would be unfair to the defendant

Majority in Baker were mistaken in approaching the problems common

to the cause of a supervening tortuous act and to that of supervening illness
wholly from the point of view of causation.
o In the case of supervening illness, it is appropriate to keep in view that
this is one of the ordinary vicissitudes of life, and when one is
comparing the situation resulting from the accident with the situation
had there been no accident, to recognize that the illness would have

overtaken the plaintiff in any event, so that it cannot be disregarded in

arriving at proper compensation and no more than proper
compensation
It might be said that a supervening tort is not one of the ordinary
vicissitudes of life, or that it is too remote a possibility to be taken into
account, or that it can properly be disregarded because it carries its own
remedy. None of these formulations is entirely satisfactory. The fact remains
that the principle of full compensation requires that a just and practical
solution should be found. In the event that damages against two successive
tortfeasors fall to be assessed at the same time, it would be highly
unreasonable if the aggregate of both awards were less than the total loss
suffered by the plaintiff
o In order for the P may be fully compensated, it becomes necessary to
deduct the award so calculated from the assessment of the P's total
loss and award the balance against the first tort- feasor
If a non-tortious supervening event is to have the effect of reducing
damages but a subsequent tortuous act is not, there may be in some cases
be a difficulty in ascertaining whether the event in question is or is not of a
tortuous character, particularly in the absence of the alleged tortfeasor. the
distinction between tortuous and non-tortious supervening events should not
be accepted. The court must simply do its best to arrive at a just assessment
of damages in a pragmatical way in the light of the whole circumstances of
the case

Appeal dismissed. But they didn't argue that Baker should be or could
be overruled.
One of the issues that has bedeviled courts both here and abroad is how to assess
the liability of a tortfeasor where the injury or damage that has been
caused by that tortfeasor has been compounded by the effect of later
but unrelated events which take place in the pre-trial period. One way of
approaching the question is to consider whether the supervening event is to
be regarded as a vicissitude of life. If so, it must be taken into account as
a factor limiting the defendant tortfeasor's liability. Some events are
routinely recognized as vicissitudes - illness, unemployment, death,
even a widow's remarriage.

Application of the vicissitudes principle affects mainly the position of the

original tortfeasor with the second tortfeasor, other rules come into
operation like the notion that the tortfeasor must take the victim as he or
she is at the time of the accident
The defendant is not liable for all ulterior harm. In order to establish liability it is
necessary to examine the nature of the ulterior harm. If it is such as to
break the chain of causation, the original defendant will not be
responsible for the ensuing consequences. This is because it is a
novus actus interveniens.
Also, damage incurred in rescuing a person imperiled by the act of the
defendant is not too remote where possibility of such rescue could
have been anticipated. The same damage can be brought about in a
factual sense by more than one set of conditions, each sufficient in itself or in
combination with other causes - maybe described as concurrent causes. Not
all concurrent causes will lead to legal liability; therefore each must be
carefully examined in order to ascertain which one of them ought to be
regarded as substantive legal cause of the harm. Concurrent causes need not
be simultaneous.
SECOND TORTIOUS ACT - BAKER V WILLOUGBY
SECOND NATURAL EVENT - JOBLING

Remoteness of damage

D will not be liable for damage which was not R.F. consequence of Ds
negligence
- Wagon Mound No.1 = abolished Re Polemis introduced R.F.
- Wagon Mound No. 2 = Same as breach of duty R.F. = Reid LJ not
Far-fetched
Kind of damage
- Hughes v Lord Advocate
o Manner is irrelevant only need to show that the kind of burns
was foresseable
o Immaterial if more serious than foreseen.
Remoteness as a checkpoint of the scope of the defendants 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

Overseas Tankship (UK) v Morts Dock and Engineering

Co (Wagon Mound (No 1)) [1961] AC 388 - Privy
Council
Principle of Law: Reasonable foreseeability of the kind of damage
sufered by the plaintif is the test of remoteness of damage in
modern Australian law.
Facts
The defendant (appellant) was the charterer of a vessel named the "SS Wagon
Mound." While it was moored to take in furnace oil, some of the oil spilled
into Sydney Harbour due to the carelessness of the defendant. It spread to
underneath the nearby Sheerleg's Wharf, which was owned and used by the
plaintiffs (respondents) for their ship repair business and where, at the time,
their employees were using oxyacetylene welding equipment
Some cotton waste or debris floating on the oil was set on fire by molten metal
falling from the wharf, and the flaming waste in turn set the floating oil
alight, either directly or by first igniting a wooden pile coated with oil. An
extensive fire then developed which damaged the plaintiff's wharf and
equipment
In their action against the defendant in negligence, the plaintiffs were successful at
first instance. The defendant's appeal to the Full Court of the Supreme Court
of New South Wales was dismissed and the defendant then appealed to the
Privy Council.
Re Polemis rule: where someone liable for negligence, liable for all
damage which flowed from that negligence regardless of how
unforeseeable. This was replaced with this case.
RE POLEMIS RULE REPLACED
Held
o The raison d'etre of furnace oil is, of course, that it shall burn, but I find the
defendant did not know and could not reasonably be expected to have
known that it was capable of being set afire when spread on water
o Apart from damage by fire the respondents had suffered some damage
from the spillage of oil in that it had got upon their slipways and congealed
upon them and interfered with their use of the slips
o It does not seem consonant with current ideas of justice or morality that for
an act of negligence, however slight or venial, which results in some trivial
foreseeable damage the actor should be liable for all consequences however

o
o

o
o

unforeseeable and however grave, so long as they can be said to be 'direct.'

It is a principle of civil liability, subject only to qualifications which
have no present relevance, that a man must be considered to be
responsible for the probable consequences of his act
To demand more of him is too harsh a rule, to demand less is to ignore that
civilized order requires the observance of a minimum standard of behaviour
It is to be asked why a man should be responsible for the natural or necessary
or probable consequences of his act, the answer is that it is not because they
are natural or necessary or probable, but because, since they have this
quality, it is judged by the standard of the reasonable man that he ought to
have foreseen them
It has happened over and over again that it was reasonably
foreseeable, or alternatively, on the ground that it was naturally or
necessary or probable (liability for a consequence)
If some limitation must be imposed upon the consequences for which the
negligent actor is to be held responsible - and all are agreed that some
limitation there must be - why should that test be rejected which, since he is
judged by what the reasonable man ought to foresee, corresponds with the
common conscience of mankind and a test be substituted which leads to
nowhere but the never-ending and insoluble probs of causation
It is no doubt proper when considering tortuous liability for negligence to
analyse its elements and to say that the plaintiff must prove a duty owed to
him by the defendant, a breach of that duty by the defendant, and
consequent damage. But there can be no liability until the damage has been
done. It is not the act but the consequences on which the liability is
founded.
Lordships - want to displace the proposition that unforeseeability is
irrelevant if damage is 'direct.' In doing so they have inevitably insisted
that the essential factor in determining liability is whether the damage is of
such a kind as the reasonable man should have foreseen
This accords with the general view thus stated by Lord Atkin in
Donoghue v Stevenson "The liability for negligence . is no doubt
based upon a general public sentiment of moral wrongdoing for
which the ofender must pay"
It would be wrong that a man should be held liable for damage
unpredictable by a reasonable man because it was 'direct' or
'natural,' equally it would be wrong that he should escape
liability, however 'indirect' the damage, if he foresaw or could
reasonably foresee the intervening events which led to its being
done
o THUS FORESEEABILITY BECOMES THE EFFECTIVE TEST

R.F. is a limiting principle which limits extent of liability to

plaintif. It is not a test of causation but limited by
reference to reasonable foreseeability. If it was not reasonably
foreseeable then damage is too remote.
Test for remoteness is reasonably foreseeability (No. 2)
Appeal allowed.

Overseas Tankship (UK) Ltd v Miller Steamship Co Pty

Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617,
also a decision of the Privy Council on appeal
from NSW arose out of the same incident. The
plaintiffs were the owners of two vessels,
o
o

'Corrimal' and 'Audrey D,' which were undergoing repairs and

damaged in the fire. The plaintiffs claimed damages in public nuisance
and negligence against the charterer of the Wagon Mound.
In these proceedings, the evidence and findings were 'substantially
diferent.' In particular, there was a finding that a reasonable person in

the position of the chief engineer of the 'Wagon Mound' would

have been aware of a real risk of fire after the furnace oil
spillage. Although small, it was reasonably foreseeable. As the
elimination of the risk involved no difficulty, disadvantage or expense, the
charterer of the Wagon Mound was liable for the damage to the
plaintiff's vessels. This case confirmed that reasonable
foreseeability of the kind of damage sufered by the plaintif is
the test of remoteness of damage in nuisance as well as
negligence.

d)

Egg shell skull rule

Smith v Leech Brain & Co [1962] BURNT LIP

Smith was a galvaniser in a factory. Had to watch as various objects inserted

into a vat of molten metal. OHS not a primary concern so he was given a
sheet of corrugated iron to stand behind and occasionally had to pop head
out to check everything going smoothly
Splashes of molten metal and he happened to pop out to cop a lump of
molten metal in his lip. He suffered a burn and at the time underlying
precancerous cells - the burn accelerated cancer and he died of cancer over
a period of 3 years
Wife brought proceedings for compensation to relatives against former
employer
Reasonably foreseeable that if lump of molten landed on a person he
would suffer a burn but not that they would die in horrible and
protractible way from mouth and lung cancer: The was not
reasonably foreseeable and damage too remote
'EGG SHELL SKULL RULE' - R.F. that a reasonable person in position of Mr
Smith would suffer a burn and if you suffered a burn might be other related
consequences. The fact of the burn accelerated underlying condition
(intimate connection) - ALL THAT NEEDED TO BE R.F. WAS THE TYPE
OF INJURY HE SUSTAINED FROM BURN WAS, JUST SO HAPPENED
THAT THE BURN AND ITS CONSEQUENCES MORE SERIOUS THAN
FOR AN ORDINARY INDIVIDUAL
Extent of harm sufered was not r.f. but type of harm was - only need
to reasonably foresee type of harm, not extent. If person in his position would
have suffered a burn Leech brain liable to
Smith's estate as you "find them"

Lord Parker stated:

If a man is negligently run over... it is no answer to the sufferers claim for damages that he
would have suffered less injury... if he had not had an unusually thin skull or an unusually
weak heart
The ratio decidendi is that a tortfeasor is liable for negligent damage, even when the
claimant had a predisposition that made that damage more severe than it otherwise would
have been.
ESSR as long as victim suffers from R.F type of harm the extend of the harm does
not matter because we take our victim as we find them

e) Manner of occurrence of damage

Hughes v Lord Advocate [1963] PARAFFIN LAMP

Electrical workers in Scotland. Wires underground in Edinborough and

electrical workers, to deal with problem underground removed access
on a street and at end of day didn't return access hole cover but put
weather tent on it, and tarpaulin 4 red paraffin lamps on the site to
warn the traffic.
o 8 year old boy with his 10 year old uncle starting meddling with
the equipment
o They picked up a lamp and entered the tent
Hughes took lamp with him. Lamp broke, paraffin vaporized, flame
ignited paraffin gas and he suffered third degree burns and so family
brought proceedings against lord advocate

Issue
Whether D had taken adequate steps and sufficient duty of care.
Was the accident and kind of injury suffered a dfifferent type than that
oculd have been foreseeable.
Was the accident foreseeable in nature
Held
- No contrib negligence Post Office did not own land so no
trespassing. Age and mind of appellant taken into account.
- On whether the D had taken reasonable care to prevent the
accident was doubted by Lord Jenkins on following the
standard described by Lord Atlkin in DvS you must take
reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbor.
- Cout ruled that they had not taken reasonable steps
-

Children were reasonable class of plaintifs Defendant could

not prove that children were unforeseeable

Lord Reid in Hughes v Lord Advocate - The TYPE OF INJURY WAS

FORESEEABLE. Paraffin lamps = BURNING. The degree does not
matter only the type.

NOT THE PRECISE MANNER OF HARM NEEDS TO BE REASONABLY

FORESEEABLE - SUFFICIENT THAT YOU REASONABLY FORESEE THE
TYPE OF HARM SUSTAINED (infliction of harm via burns - here, via
than being a direct burn it occurred via an explosion. The fact that it
did not occur in this was did not mean it was reasonably foreseeable.

Civil Liability Act reforms

Civil Liability Act 2002 (NSW) ss SD, SE
This is the starting point in legislation for causation. March v Stramare is
CL. Section SD(1) is an attempt of statutory restatement of March v
Stramare.

5D General principles

(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"), and
(b) that it is appropriate for the scope of the negligent persons liability to
extend to the harm so caused ( "scope of liability").
(2) In determining in an exceptional case, in accordance with established
principles, whether negligence that cannot be established as a necessary
condition of the occurrence of harm should be accepted as establishing
factual causation, the court is to consider (amongst other relevant things)
whether or not and why responsibility for the harm should be imposed on
the negligent party.
o Look at material cause.
(3) If it is relevant to the determination of factual causation to determine what
the person who suffered harm would have 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
o Eg. negligent failure to warn cases.
(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 determining the scope of liability, the court is to consider
(amongst other relevant things) whether or not and why responsibility for
the harm should be imposed on the negligent party.
o Look at policy (March v Stramare) for causation and remoteness
o Test for remoteness is reasonable foresight of damage (Wagon
Mound No1).

State Rail Authority of New South Wales v Chu (2008)

Principle of Law: The criminal act of a third party may constitute an intervening
act (novus actus interveniens) which breaks the causal connection between
the defendant's negligence and the plaintiff's damage.
Facts

In Dec 2002, the plaintiff (respondent) fell while walking down stairs at the
defendant's (appellant's) railway station at Sydenham and fractured her left
ankle

In the plaintiff's proceedings against the defendant to recover damages for

personal injury, the trial judge in the District Court of New South Wales
found that the cause of the accident was the defendant's negligence (the
hazardous condition of the stairs)

In addition to awarding the plaintiff damages for her fractured left ankle, the
trial judge awarded the plaintiff damages for the psychological injury suffered
by her as the result of a sexual assault committed against her about 5 or 6
weeks after the accident and at a time when the plaintiff's leg was still in
plaster
o A man who had been assisting the respondent, taking her around and
speaking English with her invited her to his home. He took her into his
bedroom and would not let her leave. He took her mobile phone and
purse and put them on a high shelf, out of her reach. He forced her to
have oral and vaginal intercourse and subjected her to physical
beatings. It was many hours before able to leave
o It was the respondent's case before the DC that the sexual assault was
a direct and foreseeable result of her fall at Sydenham Station. The trial
judge accepted this proposition. He found that the respondent's

reduced mobility made her more vulnerable to a sexual predator and

hindered her capacity to escape
The trial judge found that this was a foreseeable consequence of the appellant's
breach of duty
Accordingly damages awarded to the respondent for psychological injury
included compensation for the sexual assault and its aftermath

Was a sexual A a R.F type of harm as a result of fracturing the ankle s.5D(1)
(b) if subsequent conduct is R.F. than it is within the scope of liability.
On appeal, the defendant challenged the trial judge's award of damages for
psychological injury suffered by the plaintiff as the real cause of the sexual
assault. The NSW CA held that the sexual assault constituted a novus actus
interveniens which broke the chain of causation between the defendant's
negligence and the psychological injury suffered by the plaintiff as a result of
that assault. Accordingly, the defendant was not liable for this aspect of the
plaintiff's damage.
- It was not clear that
Held

The real question is whether the trial judge erred in finding the matters of
causation and foreseeability in favour of the respondent

The appellant submitted that the trial judge overstated the evidence
linking the respondent's injury with the subsequent sexual assault. It was
not her lack of mobility which principally constrained her from leaving the
assailant's room. Other factors were more significant, particularly the
presence downstairs of the assailant's parents, and the fact that the
assailant had taken her wallet and telephone and she did not want to leave
without them
o There is considerable strength in this submission. From a factual point
of view there was little evidence to support his Honour's finding on
the causation issue.

The sexual assault was plainly, in my view, a novus actus interveniens

which broke the chain of causation.

There was a clear break in the causal link between the injury suffered by the
respondent as a result of her fall at the appellant's station and the injury she
suffered as a result of the sexual assault some weeks later

It was not reasonably foreseeable that a young woman who was

immobilized to the extent of having to use crutches would thereby be
exposed to criminal sexual assault

Appeal allowed in part

Extent of causal responsibility marked by test of reasonable
foreseeability.