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Torts week 62


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									Torts week 6/2
Juliet Behrens

Our agenda today
• Finish causation, commence remoteness • We will spend Monday on revision questions, and then complete remoteness on Wednesday • But first… • Reminder that the mid-semester exam is on next Wednesday (4th) at 8.00 in Melville Hall • No tutorials next week because of the mid-semester, but there will be large group classes. • Professor Stapleton‟s lectures are on tomorrow and next Thursday 1-2 (this week in MCC T3)

General approach cont.
• We have looked at the “but for” test (also called a test of scientific causation, necessary condition test, material contribution) • Problems with the “but for” test- how is it over-inclusive? • it may create liability for “mere background” events- see example of the grieving father in Lunz and Hambly 4.3.1. • In that example there was no negligence in any case, but there may be another case where there is, but that negligence is “mere background”, rather than a cause of subsequent harm • it doesn‟t allow for the possibility that an event subsequent to the negligent act broke the chain of causation- eg. D negligently injures P in a car crash, P is taken to hospital where a surgeon cuts off his left leg instead of his right one- should D be liable for the amputation? (see Mahony v Kruschich which we will talk about later)

General approach cont.
• 2. scope of liability- this in effect conflates the remaining (after “but for”) causation questions and remoteness of damages stages into one. We will consider them separately. • the “but for” test is not enough for causation- must determine whether “it is appropriate for the scope of the negligent person‟s liability to extend to the harm so caused” (s.5D(2)). • Also see s.5D(4)- “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” • While this involves a change to the analytical categories (as discussed last time), it does not seem like a substantive change to the common law, although it may make appeals to “common sense” less sustainable (see comments in notes in 14.25).

General approach cont.
• What did you get from March v Stramare about other factors (beyond the “but for” test) which will impact on whether conduct is regarded as a cause of harm? • “common sense” and policy (per Mason CJ and Deane J in M v S) • a factor which merely secures the presence of the P at the place where and at the time when he or she is injured is not causally connected with the injury (per Mason CJ in M v S, p.591) • in the context of apportionment legislation... (Deane J p.593)

General approach cont.
• Policy example- State Rail Authority of NSW v Wiegold- (p 603) NSW CA held that as a matter of policy the court should not hold that the imprisonment after criminal conduct was caused by the D‟s negligence (P argued he would not have fallen into financial need and turned to criminal conduct but for the D‟s negligence) • See the contrary view on public policy of Kirby P (as he then was), and contrast the outcomes in the cases in note 4 on p 604 • a test for whether intervening events sever the causal connection

Causation- subsequent independent events
• • • • • A subsequent independent event may make it inappropriate for the scope of the D‟s liability to extent to the harm caused- this used to be described as “breaking the chain of causation”, but that language is now problematic It is probably preferable to ask the question in terms of s 5D- was there a subsequent independent event which made it inappropriate that the D‟s liability extend to the consequences of that event? When will it do so? March v Stramare- use common sense and experience including policy Chapman v Hearse- foreseeability of the intervening event is not the test for causation but is it “in the ordinary course of things the very kind of thing that is likely to happen as a result of D‟s negligence” (Mason CJ in March)- a matter of “circumstance and degree” (referred to by Smith J in Haber v Walker).

Subsequent independent events cont.
• • • • Haber v Walker-death by suicide of Ps‟ husband/father 18 months after the injury by the collision a coincidence or a voluntary human action can “break the chain” (but this cannot be read like a statute as a prescription that covers every case)- see judgment of Smith J end p 600. NB the jury had found that death by hanging was not something which D could reasonably be expected to have foreseen jury also found that the death was not “an act of his own volition”- court took this finding and said that “the deceased‟s act in hanging himself was not…a „voluntary‟ act of the deceased, in consequence of the d‟s negligence, was acting under the pressure of a mental disorder…and he was thereby prevented from exercising a free choice” Lowe J- not „the conscious act of a sane person‟, therefore could not break the chain We will deal with the statutory dependant‟s action in week 13.

• •

Subsequent independent events cont.
• • Consider voluntary human conduct, coincidence (and subsequent negligent conduct) Voluntary human conduct (excluding cases of subsequent negligence)


• •

meaning of “voluntary”- Haber v Walker and Caterson v Commissioner for Railways (P seeing friend off at railway station, carried luggage into carriage and was about to leave when train started to move without warning. P‟s 14 year old son alone on platform 64 km from home. Next station 128 km away. P jumped from train. Discussion focused on breach, but why was P‟s conduct not voluntary human conduct? rescuer cases, children cases- courts generally reluctant to find voluntary conduct in these cases sufficient to constitute a „subsequent independent event.‟ recall Mason CJ in March v Stramare. Was there a duty to protect from risk of the third party voluntary act?- eg. Dorset v Home Office – in that case it will make no sense to describe that voluntary act as “breaking the chain of causation” or making it inappropriate that the scope of D‟s liability extend to the consequences of it.

Subsequent independent events cont
• Coincidence • “a causally independent event the conjunction of which with the wrongful act or omission is by ordinary standards so extremely unlikely as to be termed a coincidence” • examples? • Subsequent negligent conduct (by a 3rd party, another D or P) • note also contributory negligence- March v Stramare and the M‟Kew case referred to there (“independent and unreasonable action”). • It is unusual to find a case where contributory negligence is regarded as the sole cause of the P‟s injury

Subsequent independent events cont.
• negligent medical treatment- see Mahony v Kruschich- „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 P‟s subsequent condition…etc on p. 601. • Different if the medical treatment or advice is „inexcusably bad‟ or „completely outside the bounds of what any reputable medical practitioner might prescribe‟later uses words „grossly negligent‟ (in which context have we recently heard this term?)

Exceptional cases
• • • • Section 5D(2) indicates that there may be factual causation in certain exceptional cases where it cannot be established that the negligence was a necessary condition of the occurrence of harm- ie. where the “but for” test is not satisfied, but doesn‟t tell us what they are. What might be examples? Largely cases where limitations in medical knowledge make it impossible to prove- eg. P suffers from mesothelioma, which is almost certainly caused by exposure to asbestos, but it is not clear which employer‟s exposure caused the mesothelioma. What is the causation problem here? Need the P prove „with medical exactitude that fibers from a particular defendant‟s asbestoscontaining products were those, or among those, that actually began the cellular process of malignancy‟? (quote from Rutherford v Owens-Illinois Inc, p.624)

Exceptional cases cont.

• Other contexts (UK): McGhee- not proved that the precautions (providing a shower) would have made a difference, though lack of precautions materially increased the risk of the injury- D liable • Wilsher- child suffered condition which could have been attributable to a number of causes, one possible one being excess oxygen (negligence by D)- D not liable (ultimately in the House of Lords)- McGhee different because „there was only one possible agent which could have caused the dermatitis and there was no doubt that the dermatitis from which he suffered was caused by that brick dust‟. • High Court has applied the McGhee approach in a couple of cases (particularly Chappel v Hart)

Exceptional cases cont.
• More recently- Fairchild • „whether by treating an increase in risk as equivalent to a material contribution, or by putting a burden on the defendant, or by enlarging the ordinary approach to acting in concert, or on more general grounds influenced by policy considerations, most jurisdictions would, it seems, afford a remedy to the plaintiff (p 624) • See discussion of policy considerations at p 625: „I am of the opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim.‟ • Legal principle- C will be able to recover when the conditions 1-6 (top p 620) are met • The limits of the common law in the UK, and the general position in Australia remains to be tested.

Exceptional cases cont.
• The common law is left in tact (and left to be developed) by s 5D(2) • Approaches which would reverse the onus of proof (eg. Bennett v Minister for Community Welfare) in some kinds of difficult cases are, however, now ruled out in NSW by virtue of the operation of s.5E CLA. • Other category of exceptional cases- multiple sufficient causes- you don‟t need to be able to deal with these.

Remoteness of damage- introductory points
• This will complete our introductory consideration of the elements of the tort of negligence • As part of determining whether it is appropriate for the scope of the D‟s liability to extend to the harm caused by D (s.5D(1)(b)), we ask an additional question to those looked at so far- namely, was the damage is “not too remote” (remoteness) • Historically, D was liable for all damage that was a direct consequence of their negligence- causation was enough (Re Polemis, 1921) • This was criticised as placing too heavy a burden on defendants, particularly after the duty of care concept was expanded

Adoption of the test- WM1-p.645
• • • • • • „the essential factor in determining liability is whether the damage is of such a kind as the reasonable man (sic.) should have foreseen.‟ Think about the difference in the foreseeability test at this (remoteness) stage WM1- what would the question be at duty stage, at breach, at remoteness? Here the kind of damage was defined as damage by fire, and the trial judge had found such damage was not foreseeable (while damage by soiling was, but not claimed for) Therefore the damage by fire was too remote, and not recoverable. One of the key tasks in relation to remoteness is determining the appropriate level of abstraction at which to describe the „kind of damage‟- we will return to this question next Wednesday.

Identifying revision questions
• Please spend the remainder of the time we have identifying and writing down two (reasonably specific) questions which you would like me to cover on Monday for revision

Homework (for next Wednesday)
• Read Wagon Mound (No. 2) and Jolley

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