TORTS LECTURE 7

CAUSATION & DAMAGE

Clary Castrission

clary@40k.com.au

Tonight’s lecture

1. Understanding ‘damage’ in negligence claims

2. Factual Causation1.The But For test2.Limitations of the But For Test3.Interesting situations4.Novus Actus Interveniens

3. Legal Causation (remoteness)1.Egg-Shell Skull Cases

4. s5D of the CLA

5. Bringing Negligence together…

Damage in Negligence

Duty of care

Breach

Damage

Negligence

Damage in Negligence

Damage is the gist of the action in NegligenceThe scope of actionable damage (s5 CLA):propertypersonalMental: s31pure economic lossDamage must be actual for compensation; no cause

of action accrues until damage

2 step process

1. Factual causation

2. Legal causation (remoteness)

1. Factual Causation

For P to be successful in an action in Negligence, D’s breach of duty must cause damage to P or his/her property

Fitzgerald v Penn (1954) 91 CLR 268 at 277-8: It is a mistake to attempt either to explain ‘causation’ as a general conception to a jury or to define for them a degree of closeness which must subsist in the connection between wrongdoing and damage. To begin with, it is not really necessary, because a jury is expected to have a sound common sense idea of what is meant by saying that one fact is a cause of another, and it is all ultimately a matter of common sense.

March v Stramare

Chappel v Hart

1. Factual causation (cont)

The ‘but for’ test Would the P still have suffered the harm

but for D’s negligence?

• Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428

1.Trouble with eliminating ‘contributing reasons’

2.Two or more tortious actsMarch v Stramare (1991) 171 CLR 506 per Deane J (at 523): [The ‘But For’ test should not be the exclusive test as it] “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 the injury was sustained.” (at 523)

1. Factual causation (cont)

Limitations on the ‘but for’ test

What happens when you can’t conclusively prove the defendant caused the harm?

McGhee v National Coal Board (1973) 1 WLR 1Wilsher v Essex Area Health Authority [1987] 3

All ER 801

And in Australia…Chappel v Hart (1998) 1995 CLR 232

McHugh J at [27]: If a wrongful act or omission results in an increased risk of injury… and that risk eventuates, the defendant’s conduct has materially contributed to the injury… whether or not other factors have also contributed.

Novus actus interveniens

Lord Wright in The Oropesa [1943] P 32 “To break the chain of causation it must be shown that

there is something I will call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic”

Haber v Walker [1963] VR 339

Very hard to prove: Chapman v Hearse Kavanagh v Akhtar (1998) 45 NSWLR 588

Where it has worked McKew v Holland & Hannon & Cubitts Ltd [1969] 3 All ER

1621

D will avoid liability if the subsequent act that exacerbated/caused the injury was not reasonably foreseeable: March v Stramare.

2. Legal causation (remoteness)

Whether the scope of negligence should extend to the harm caused.

Beavis v Apthorpe (1962) 80 WN (NSW) 852 at 856 per Herron CJ: In one sense, almost nothing is quite unforeseeable, since there is a very slight mathematical chance, recognizable in advance, that even the most freakish accidents will occur. In another, nothing is entirely foreseeable, since the exact details of a sequence of events never can be predicted with complete confidence.

remoteness

Were the injuries a reasonably foreseeable consequence of the act?

Wagonmound No. 1 [1961] AC 388Wagonmound No. 2 [1967] AC 617Chapman v Hearse

Type of harm being foreseeableTremain v Pike [1969] 3 All ER 1303 Bradford v Robinson Rentals Ltd [1967] 1 All ER 267

Hughes v Lord Advocate [1963] AC 837

Egg-shell skull cases

Negretto v Sayers [1963] SASR 313 at 318.

Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501

Golder v Caledonian Railway Co (1902) 5 F (Ct of Sess) 123

s5D CLA

(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 person’s 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.

(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

(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.

Tonight’s lecture

1. Understanding ‘damage’ in negligence claims

2. Factual Causation1.The But For test2.Limitations of the But For Test3.Interesting situations4.Novus Actus Interveniens

3. Legal Causation (remoteness)1.Egg-Shell Skull Cases

4. s5D of the CLA

5. Bringing Negligence together…

Paul owned a restaurant in Liverpool (Sydney) called “The Cavern Club,” which was licensed to serve alcohol between midday and 4am each day. The restaurant, on the 2nd floor of a building, had never had any violent incidents before, apart from one occasion three years ago when a bikie gang called “The Stones” yelled abuse at some patrons.

On Australia Day Eve last year, The Cavern Club was open for a dinner and dance- 295 people booked in advance to attend. It was attended largely by groups of families, including children and the elderly. Alcohol was served to patrons. Paul figured that because there had never been any issues in his restaurant, there was no need to hire any security guards for the evening.

A fight broke out between two women, Linda and Yoko on the dancefloor. Chairs, plates and bottles thrown. Onlookers joined in and before you knew it, it was an all-out brawl.

One man, John, was hit in the face by Ringo, drawing blood. John left and came back with a gun. When another man, George, saw John come into the restaurant with a gun, he ran into the kitchen and slipped. John followed him into the kitchen, and despite George begging and pleading to not be shot, he was shot in the leg.

John then went and found Ringo, who drew the first blood, and shot him in the stomach.

Advise George and Ringo (together) as to whether they can sue The Cavern Club. Do not discuss damages.

Bringing it all together- YOUR TURN