TORTS

TORTS

Causation

[1] GENERAL:CAUSATION



Duty of Care









breach causation damage = Negligence





There must be a causal link between D’s

breach of duty and damage to P or P’s

property

Overseas Tankship (UK) Ltd v Morts Dock and

Engineering Co Ltd (The Wagon Mound 1)



• The facts:

• The rule: the replacement of „direct‟ cause

(Re Polemis )with reasonably foreseeable‟

• It is not the hindsight of a fool, but the

foresight of a reasonable man which alone

can determine liability (per Viscount

Simonds)

CAUSATION: THE ELEMENTS

• Causation involves two fundamental

questions:

– the factual question whether D’s act in fact

caused P’s damage: causation-in-fact

– Whether, and to what extent D should be

held responsible for the consequences of his

conduct: legal causation

CLA s5D

• (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" ).

• (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.

THE ELEMENTS OF CAUSATION



Causation









Factual Legal

(Causation in fact)

CAUSATION-IN-FACT



• Causation in fact relates to the factor(s) or

conditions which were causally relevant in

producing the consequences

• Whether a particular condition is sufficient to

be causally relevant depends on whether it

was a necessary condition for the occurrence

of the damage

• The necessary condition: causa sine qua non

CAUSATION



• To be successful in a claim for a remedy,

P needs to prove that the loss for which

he/she seeks compensation was caused in

fact by the D‟s wrongful act

• Traditionally, the test whether D‟s

wrongful act did in fact cause the loss is

the „but for‟ test

Kavanagh v Akhtar

• Facts:a Muslim woman who was physically injured

while shopping was forced by the medical condition

she had to then cut her previously long hair…

Husband rejects her causing her to suffer

depression

– In any event, the possibility that a person will desert a

partner who has been disfigured in the eyes of the

deserter is sufficiently commonplace to be foreseeable

(Per Mason J)

• It was not necessary that the defendant should

have foreseen the precise nature of the

consequences of his act. In the present case, the

plaintiff‟s psychiatric illness was foreseeable

Chapman v Hearse; Jolley V Sutton



• The place of intervening acts in causation

• Jolley v Suttton

– P then aged 14, sustained serious spinal injuries in an accident.

It arose when a small abandoned cabin cruiser, which had been

left lying in the grounds of the block of flats, fell on Justin as he

lay underneath it while attempting to repair and paint it. As a

result he is now a paraplegic.

– D held liable; what must have been foreseen is not the precise

injury which occurred but injury of a given description. The

foreseeability is not as to the particulars but the genus.

MATERIAL CONTRIBTION

• In general, it is not sufficient for a plaintiff to

show that the negligence was one of several

possible causes; It needs to be demonstrated

that D’s conduct was the most probable cause

of P’s damage.

• In Common Law, it is also not enough for P to

show that D’s conduct materially increased the

risk to D. P needs to prove that D’s conduct

materially caused the damage

MATERIAL CONTRIBUTION



• Bonnington Castings v Wardlaw [1956]

AC 613

– The plaintiff had a lung disease because of

fumes the employer had exposed him to, plus

he had exposed himself to smoke – issue

whether employer had caused the disease?

– House of Lords held: P must make it appear

at least that on the balance of probabilities

the breach of duty caused or materially

contributed to his injury

MATERIAL CONTRIBUTION



• Chappel v Hart (1998) 156 ALR 517

– Court noted that the Plaintiff must show the

Defendant‟s action materially contributed to

the Plaintiff‟s injury

INCREASE IN MATEARIAL RISK



• M‟Ghee v National Coal Bd (1972) 3 All ER 1008

– The P claimed employer‟s failure to provide showers to wash away

residue caused his dermatitis - the doctors were not certain if

showers would have stopped the plaintiff contracting dermatitis D

held liable but mainly on policy grounds

• Wilsher v Essex Area Health Authority (1988):

– a premature baby negligently received an excessive concentration

of oxygen and suffered retrolental fibroplasia leading to blindness.

However the medical evidence demonstrated that this can occur in

premature babies who have not been given excessive oxygen, and

there were four other distinct conditions which could also have been

causative of the fibroplasia

– M‟Ghee distinguished on the grounds that there was only one causal

candidate (brick dust)

Bailey v The Ministry of

Defence & Anor (2008)

• The claimant aspirated her vomit leading to a cardiac

arrest that caused her to suffer hypoxic brain damage.

There was evidence of negligence by the medical team

• the question: what caused her to aspirate her vomit.

– Issue: whether the negligence had "caused or materially

contributed to" the injury

– Held: If the claimant could have established on the balance of

probabilities that 'but for' the negligence of the defendant the

injury would not have occurred, she would have been entitled to

succeed.

– The instant case involved cumulative causes acting so as to create

a weakness so that she could not prevent the aspiration

INCREASE IN MATERIAL RISK

VERSUS MATERIAL CAUSATION

• “A material increase in the risk of injury by a

defendant is not legally equated with a material

contribution to the injury by a defendant. However, in

some circumstances if it were proved that the

defendant did materially increase the risk of injuring

the plaintiff then the court might infer causation, i.e.

that the defendant’s negligence materially contributed

to the injury (Wallaby Grip (BAE) Pty Ltd (in liq) v

MacLeay Area Health Service )

Causation principles under the

CLA: s5D (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

MULTIPLE CAUSES



• Where the injury or damage of which the

plaintiff complains is caused by D’s act

combined with some other act or event, D

is liable for the whole of the loss where it

is indivisible; where it is divisible, D is

liable for the proportion that is attributable

to him/her

MULTIPLE CAUSES: TYPES

• Concurrent sufficient causes

– where two or more independent events cause the

damage/loss to D ( eg, two separate fires destroy P’s

property)

• Successive sufficient causes

• Baker v Willoughby; Faulkner v Keffalinos;

– D2 is entitled to take P (the victim) as he finds him/her

– Where D2 exacerbates a pre-existing loss/injury (such as

hasten the death of P) D2 is liable only for the part of the

damage that is attributable to him

THE ELEMENTS OF

CAUSATION



Causation









Factual

(Causation in fact)

Legal

LEGAL CAUSATION



• Factual causation in itself is not

necessarily sufficient as a basis for D’s

liability

• To be liable, D’s conduct must be the

proximate cause of P’s injury

• P’s harm must not be too remote from

D’s conduct

REMOTENESS



• The law cannot take account off

everything that follows a wrongful act; it

regards some matters as outside the

scope of its selection. In the varied wave

of affairs, the law must abstract some

consequences as relevant, not perhaps

on grounds of pure logic but simply for

practical reasons Per Lord Wright

Liebosch Dredger v SS Edison [1933]

AC 449

Case Law on Remoteness



• Earlier position in Common Law

– Re Polemis:- the ‘directness element’

• The current position:

– The Wagon Mound (No. 1)

– The Wagon Mound (No. 2)

INTERVENING ACT



• An intervening act breaks the chain of causation and

may relieve D of liability. To be sufficient to break the

chain, it must either be a:

– human action that is properly to be regarded as

voluntary or a causally independent event the

conjunction of which with the wrongful act in or

omission is by ordinary standards so extremely

unlikely as to be turned a coincidence ( Smith J

Haber v Walker [1963] VR 339

INTERVENING ACT 2



• A foreseeable ‘intervening act’ does not break the

chain of causation

– Chapman v Hearse

• Negligent medical treatment subsequent to negligent

injury would not necessarily remove liability for D1

unless the subsequent injury was ‘inexcusably bad’,

so obviously unnecessary or improper that it fell

outside the bounds of reputable medical practice

– (Mahony v J Kruschich Demolitions)

The Law of Torts





Particular Duty Areas:

Product Liability

Abnormal Plaintiffs

Unborn Children

Liability for Defective Products:

The Scope

• Product liability as a regime for protecting

consumer rights:

– Defective structures/premises (as products?)

– Consumer goods as products

Product Liability: Evolution in

Common Law

• Originally in Common Law, a consumer in

receipt of defective goods (including goods

that caused injury to the consumer because

of defects) was protected by the warranties

implied in the contract of sale

• The implied warranties was later

incorporated into statutes:

– Sale of goods Act 1983 (UK)

– Sale of Gods At 1923 (NSW)

The Difficulties with Implied

Warranties

• Warranties do not „run‟ with goods. It is simply an

element of the contract and does not therefore

attach to the goods as such

• There is generally no „ vertical privity‟ between the

manufacturer and the ultimate consumer let alone

between wholesalers and the ultimate consumers

• Privity of contract „remained a recalcitrant obstacle

to the extension o warranties between the

manufacturer and the ultimate consumer „

(Fleming)

The Emergence of Negligence

Law: Donoghue v Stevenson

• The existence of the duty of care

between the manufacturer and

ultimate consumer

• ‘a manufacturer of products … owes

a duty to the consumer to take

reasonable care‟

The Sources of Law on Product

Liability

• Common Law:

– contract

– tort

• Statute Law

– Trade Practices Act 1974 (Cwth)

– State fair trading legislation, State Sale of Goods

legislation

– Strict liability regime.

Common Law: Negligence



• Donoghue v Stevenson and the Common

Law duty of manufacturers

• The scope of the duty:

– The extent of the duty: Junior Books v Veitchi

(the duty extends beyond merely causing harm

to safety or property)

– Intermediate examination: Grant v. Aust.

Knitting Mills

– The range of defendants: Haseldine v. Daw

The Act of the Defendant



• Negligent design of product

– O‟Dwyer v. Leo Buring [1966] WAR 67

• Negligence in the manufacturing process:

– Grant v. Australian Knitting Mills

• Negligent Marketing of a Product

– Adelaide Chemical & Fertilizer Co

V. Carlyle

• Failure to warn of dangers or proper use

Norton Aust. Pty Ltd V. Steets Ice Cream Pty Ltd

Statute



• Sale of Goods Act (1923) NSW implies into

contracts for sale of goods certain

warranties:

– fitness for purpose

– merchantable quality

– cannot be excluded

Statute



• Trade Practices Act (Comm) Pt V

Div 2A

– S74B Allows a consumer or person acquiring title

through or under consumer an action against

manufacturer in respect of goods unsuitable for

purpose of sale.

– S.74C : Action in respect of false description

– S.74D: goods of unmerchantable quality

– S.74E: goods not corresponding with sample

– S.74K : No exclusion or modification of T.P.A

The TPA: The manufacturer



• Manufacturer: defined widely (S74A

(3) & (4)) to include a corporation

– -allows its name or brand on goods

– -holds itself out as manufacture

– -is importer & manufacture has no Aust

place of business

The TPA: The Consumer



• CONSUMER: person acquiring goods

where;

– -prices does not exceed the prescribed

amount ($40,000)

– OR

– -where price was greater but goods were

of a kind ordinarily acquired for personal

domestic or household use.

The TPA: Remedies



• S75AE: Remedy for other persons

who suffer consequential losses.

• S75AF: Remedy for damage to

personal, domestic or household

goods:

• S75AG: Remedy for damage to land

or buildings

The TPA: Defences



• Defences: S75AK

• Contrib. Neg: S75AN

• 3 year time limit: S75AQ

The TPA Part VA



• Pt VA T.P.A was enacted in 1992 and

deals with the liability of manufacturers

and importers of defective goods

– S.75A: Applies to goods “if their safety is

not such as person generally are entitled to

expect”

– S.75AD: A corporation supplying such goods

is liable for damages to a person injured or

killed

Fair Trading Act (1987) (NSW)

The Action: TPA or Tort

• Under the TPA the Plaintiff does not

prove:

– -duty of care

– -negligence

• P should where possible plead 2 causes of

action:

– -in tort

– -under TPA

Abnormal Plaintiffs and

Particularly Sensitive Plaintiffs

• To be liable, P must show that she/he was

foreseeable. In general the abnormal P is not

foreseeable

• There is a distinction to be drown between

the abnormal Plaintiff and the particularly

sensitive Plaintiff

Abnormal Plaintiffs



• In general where D is negligent, D

takes P as he /she finds P. Any unusual

condition that aggravates the damage

cannot be used by D as a defence

– Haley v. London Electricity Bd. A blind P

held not to be abnormal: D “ought to

anticipate the presence of such person

within the scope and hazard of their

operations”

Particularly Sensitive Plaintiff



• Where P suffers damage because of a

particular sensitivity in circumstances

where D‟s conduct is not considered a

breach, P cannot claim

• Levi. V Colgate Palmolive

– “the bath salts supplied to P were innocuous

to normal persons… the skin irritation which

she suffered…was attributable exclusively to

hypersensitiveness”

The Unborn Child



• In general, a duty of care may be owed to P

before birth

– Watt v. Rama: “the possibility of injury on birth to

the child was… reasonably foreseeable…On the

birth the relationship crystallised and out of it

arose a duty on the D…”

– X v. Pal: Duty to a child not conceived at the time

of the negligent act

– Lynch v. Lynch:Mother liable in neg to her own

foetus injured as result of mother‟s neg driving.

Wrongful Birth Claims

• Claims by parents in respect of the birth of a child

who would not have been born but for the D‟s

negligence.

– Vievers v Connolly (1995) 2 Qd R 325 (Mother of disabled

child born bec. Pl lost opportunity to lawfully terminate

pregnancy. Damages included costs for past & future care

of child for 30 years.)

– CES v Superclinics (1995-6) 38 NSWLR 47 Mother lost

opportunity to terminate pregnancy as a result of D‟s neg

failure to diagnose pregnancy. NSW Ct of Appeal held claim

maintainable but damages not to include costs of raising the

chills as adoption was an option.

– Melchior v Cattanach [2001] QCA 246 Mother of healthy

child after failed sterilization procedure. Qld CT Appeal held

damages shld include reasonable costs of raising the child.

Wrongful Life Claims



• Claim by child born as a result of negligent

treatment by De of child‟s parent.

• Bannerman v Mills (1991) ATR 81-079.

Summary dismissal of claim by child born with

disabilities as result of mother having rubella

whilst pregnant. Tort of wrongful life unknown

to common law

Wrongful Life Claims

• Edwards v Blomeley; Harriton v Stevens; Waller v

James (2002 ) NSW Supreme Court, Studdert J.

 No duty of care to prevent birth

 Policy reasons -

– 1. Sanctity & value of human life

– 2. impact of such claim on self-esteem of disabled persons

– 3. exposure to liability of mother who continued with

pregnancy

– 4.Plaintiffs‟ damage not recognizable at law - would involve

comparison of value of disabled life with value of non-

existence

– 5.Impossibility of assessment of damages in money terms -

taking non-existence as a point of comparison.

CLA Part 11 s71

• In any proceedings involving a claim for the birth of a

child to which this Part applies, the court cannot award

damages for economic loss for: (a) the costs associated

with rearing or maintaining the child that the claimant

has incurred or will incur in the future, or (b) any loss of

earnings by the claimant while the claimant rears or

maintains the child. (2) Subsection (1) (a) does not

preclude the recovery of any additional costs associated

with rearing or maintaining a child who suffers from a

disability that arise by reason of the disability.

Defective Premises



• In general the occupier of premises owes

a duty of care to persons who come on

to the premises

• While the notion of occupier's liability

may have developed initially as a

separate category of tort law, it now

considered under the general principles

of negligence

– Zaluzna v Australian Safeway Stores

Occupiers‟ Liability

• What are Premises?

– -Land and fixtures

– -but Cts have used wide interpretations

including moveable structures eg:

– scaffolding (London Graving Dock v. Horton

[1951] AC 737

– Ships and gangways eg. Swinton v. China

Mutual Steam Navigation Co Ltd (1951) 83 CLR

553

Occupiers‟ Liability



• Who is an occupier – control

– Wheat v. Lacon [1966] AC 522

– Kevan v. Commissioner for Railways [1972] 2

NSWLR 710