NEGLIGENCE: PROOF OF BREACH & CAUSATION

CAUSATION:
To succeed in negligence, P must have to prove on the balance of probabilities that the
damage suffered was caused by the negligence of D.
 Civil Liability Act s 5D: TWO STAGE INQUIRY:
o FACTUAL CAUSATION [s 5D(1)(a)] - ‘but-for’ test
 Question of fact
o SCOPE OF LIABILITY [s 5D(1)(b)] – whether liability should extend to all the
damages suffered by P
 Causation and remoteness of damage
 Normative consideration – the court has to apply factual and policy
considerations (is it appropriate for the liability to extend?)
 For e.g the liability did not extend in Wallace v Kam???
‘But-for’ test  but for the defendant’s negligence, would the plaintiff have suffered the
damage?
 NO: D’s negligence must be the cause of P’s damage
 YES: D’s negligence cannot be the cause of P’s damage
 March v Stramare (1991): shows the limitations of the ‘but for test’
o FACTS: D parked his truck in the middle of the road to unload items into a
shop (with hazard lights on). P, who was driving under the influence of
alcohol, drove into the back of the truck. P sued for negligence.
 Travel Compensation Fund v Tambree (2005):
o FACTS: D (auditor and accountant) prepared false and misleading statements
of financial position of a firm of travel agents. P incurred losses when the
travel agent became insolvent. However the firm continued to trade despite
losing their license (illegally)
o HELD: Found in favour of P
o Critique on the common sense approach
 Adeels Palace Night Club (2009): But-for test. NYE celebration. Gunman shoots 2 of
the patron, they survived. Patrons sue the nightclub.  occupier’s liability. Did the
nightclub’s failure to not provide security guard cause the plaintiff’s damage. HC said
probably didn’t deter the gunman. s 5D

 common sense approach not favoured by the highcourt anymore

Woolworths v Strong: Strong amputated right leg – used crutches.

 Chip dropped at 1pm (lunch time) meaning it is probable that it had just dropped. If
found that it had been dropped a while ago, Woolworths would be liable as they
have a duty of care to inspect and clean hazards?
 HC: acceptable to rely on the probability. Permissible to rely on the probability that
the chip had been dropped in the 4-hour period rather than the shorter period, bcs
Woolworths had admitted to not having cleaned since 8am
Wallace v Kam [2013]: Doctor owed a duty of care to the patient to warn them of risks
involved in procedure (Rodger v Whitaker)
 But for the doctors failure to warn of the serious risk, he would not have had the
surgery, and suffered the lesser risk
Court found that he would have still gone through with the surgery??
5D(1)(b) – doctors liability does not extend to this??
Court – consider whether the purpose of the policy (duty of care). To enable the patient to
make an informed decision – and to refrain from taking risks they are not prepared to take.
N.b can only appeal on issues of law not findings of fact
‘rule of responsibility’ why is a person responsible? Purpose of liability

WHEN TALKING ABOUT 5D: Adeel, Woolworths, Wallace

ANZEL and Modbury ??

CAUSATION:

Was there an intervening cause. The lightening strike severed the link of causation? 
novus actus interveniens
 Not appropriate for his negligence to extend to the death bcs of the intervening act
March v Stramre: the risk that was created by D has eventuated – there was no break in the chain of
causation by the intoxication

Medlin v SGIO (1995): what was the cause of the financial loss – early retirement or the defendant’s
negligence. Medlin won a case against D but was not awarded financial loss due to early retirement.
 D was liable, the effects of the motor accident prolonged. Early retirement was not
voluntary but rather due to his injuries which prevented him from doing his job properly.
Haber v Walker [1963]: P’s husband was in a car accident where D was the driver, P’s husband
developed a depressive illness and eventually committed suicide.
 D claimed Act of suicide is voluntary? Severed the connection  Driver was responsible for
mental illness but not suicide
 BUT full court of Vic Supreme Court found that the suicide was not completely voluntary as
it was a result of the depressive illness caused by D’s negligence.  chain of causation not
broken
Mahony v Kruschich (Demolitions) Pty Ltd (1985):
http://www.healthlawcentral.com/mahony-v-kruschich/
It didn’t severe the chian of causation: as long as the plaintiff acts reasonably in getting the
treatment  doctor’s actions are not a novus actus.

State Rail Authority of New South Wales v Chu [2008]:

 FACTS: Taiwanese reporter Chu had broken her ankle when she slipped at the stairs at D’s
railway station. Weeks later, whilst P’s ankle was in plaster, she was sexually assaulted and
suffered physical and psychiatric injuries.
 HELD: Chu won at first instance, but on appeal D was not held liable.
o Voluntary criminal act
o Actions of the rapist was an intervening cause. Action of rapist was indepent act to
the negligence of the D (SRA)
Chomentowski v Red Garter Restaurant (1970): P was a waiter at D and would take money pot at
the end of the night to the bank??
HELD: The employer had a duty of care to protect employee from a foreseeable risk (would go at the
same time at the same place) // could be delegated to someone else
Employer argued the act of criminal was a novus actus?
Did their negligence cause the injury  D said the act of the robber broke the chain of causation
because it was a ‘random act’ of a criminal.
The very risk that was created by the employer eventuated
Canterbury Bankstown RLFC Ltd v Rogers:
Rogers a football player (for Cronulla?) was the victim of an illegal tackle by players of P. Rogers
received
When Rogers was in the UK, Rogers suffered an injury. Rogers argued that he wouldn’t have been in
England, had he not been injured in Sydney.
Coourt held that the injury he suffered in England was not related to the initial injury he suffered in
Sydney. Rather it was a coincidence. Too far of a stretch

MATERIAL CAUSE AT COMMON LAW:

Bonnington Castings Ltd v Wardlaw [1956]
FACTS:
HELD: One exposure was tortious (at the workplace due to negligence of employer), one was not
(exposure from areas outside the work place). The evidence couldn’t establish that the negligent
exposure was more likely to have caused the disease than the innocent exposure. They could only
say it contributed to it. Could not determine amount of contribution. Court said it was a material
contribution, they would infer a causal link between the material contribution of the employers
tortious harm and the disease.
 PROBLEM: Does not satisfy the but-for test. If s 5D was applied, the P would not have
succeeded.
INCREASE IN RISK AT COMMON LAW
The D’s negligence increased the risk, not that it was a cause.
In cases where P cannot prove that D’s actions were a material cause of the harm, the most P can
prove is that D’s act could have been a cause.
 Fairchild v Glenhaven Funeral Services [2003]
 P has cancer as a result of asbestos. He had come in contact with asbestos with several
employers. Could not single it down to one employer. Scientist said even one fibre increased
risk?? Every time he was exposed his risk increased. Increasing risk is not equivalent to
saying that the negligent employer CAUSED the harm.
 House of Lords held that For policy reasons rules, of proof of causation should be modified
in these cases where medical science unable to establish precise cause of disease/injury
 Inference was drawn that the D’s negligence caused P’s loss

 Wallaby Grip (BAE) Pty Ltd v Macleay AHS (1998): Court might infer causation where a D
materially increased the risk of injury.

(s 5D(2)??) about exceptional cases of that court can accept if a plaintiff cannot form evidence of
causation?????????????????????????
 PROOF
The burden of proof is always on the Plaintiff. These elements are proved by direct evidence of
certain facts, or by circumstantial evidence, which enables the court to draw inferences.
 The defendant may bear an evidentiary onus of proof when P rpoves a fact which establ

 Inference: An Inference of negligence or causation can only be drawn from proved facts
which make it more likely than not ie: more probable than not that the D was negligent or
that D’s negligence caused the P’s loss.

Holloway v. McFeeters (1956) 94 CLR 470

 P was the widow of a man who was a victim of a hit and run driver. Widow had to prove that
the husbands death was caused by the negligence of the unknown driver (who was not
found by the police) no witnesses.
 Circumstantial evidence (skid marks, where body was found etc.)  enabled inference to be
drawn that the Car was driving on the wrong side of the road (negligently?) The court said
that more probably than not the fault was of the driver. Does not have to be an
overwhelming amount of evidence, just need to be able to draw inference that make it more
likely than not.

Res Ipsa Loquitur

‘the thing itself speaks’
When Plaintiff has very little evidence:
 Scott v. London & St. Katherines Docks: bag of flour dropped from D’s warehouse and hit P
on the head.
 If P can establish that ordinarly such an event would not normaly happen without
the negligence of someone. The court can then infer negligence from the fact that
the event happened.
 Schellenberg v. Tunnel Holdings (2000) 200 CLR 121
 Attempt to remove res ipsa
 To rely on res ipsa loquitur Pl must show:
 absence of explanation of cause of accident
 event does not usually happen w/o negligence
 the event must be in the control of D
 DOES NOT SHIFT THE ONUS OF PROOF!
PROBLEM QUESTION:

Jo runs a courier service driving his own truck. He collects a load of heavy steel joists which are to be
delivered to a building site in North Sydney. Because he is in a hurry, he neglects to fasten the
restraining straps over his load, leaving the joists loose on the back of his truck. Whilst he is driving
along Pacific Highway, he drives over a pothole and the sudden jerk causes one of the joists to fall
onto the roadway. Dennis whose car is travelling behind Jo stops quickly to avoid the joist. Robert,
who is behind Dennis, is speaking on his mobile phone and does not notice Dennis stopping until it is
too late. Robert crashes into the back of Dennis’ car and both Robert and Dennis are injured. Whose
negligence is the cause of the accident?
JOE
WHO HAS DUTY OF CARE?
 Chapman v Hearse: driver of the truck has duty of care to all road users
BREACH OF DUTY OF CARE?
 S 5(B) (1) Reasonably foresable risk (not strapping load)
 (2) not insignificant risk
o Shaw v Thomas
 Reasonable person would take precautions. Calculus of precautions
 Burden of taking precaution
Joe has breached duty of care to Dennis and Rob
Has Joe caused damage (causation)
 S 5(D)(1) But for test:
o Adeels Palace: 5(d)(1)(a) statutory equivalent of but for test
 But for Joes negligence would
 S 5(D)(1)(b): appropriate purpose test
o Wallace v Kam
o March v Stramare
JOE LIABLE TO BOTH.

ROB
WHO HAS DUTY OF CARE?
 Chapman v Hearse: driver of the truck has duty of care to all road users
BREACH OF DUTY OF CARE?
 S 5(B) (1) Reasonably foresable risk (driving on phone)
 (2) not insignificant risk
o Shaw v Thomas
 Reasonable person would take precautions. Calculus of precautions
 Burden of taking precaution
NOVUS ACTUS:
 The very risk created by Joe eventuated (not a break in chain of causation by Rob)
o March v Stramare
Dennis can sue Jo and Rob  both are liable
Can Rob sue Jo?
 Jo can say that Rob had contributory negligence
o March v Stramare
 Degree of Robs negligence would impact the discount of his damages.

Jo can argue that chain of link was broken when Dennis avoided the joist? But would not succeed
because Jo’s negligence was a major cause.
Patricia is a waitress who is employed by Robert. Robert asks her to take delivery of a
number of large drums of cooking oil whilst he is at the bank. The deliverer of the drums
leaves them at the rear entrance of the restaurant and Patricia who is alone, tries to carry
them one at a time, into the store room. As she is carrying the second drum, she feels a
sharp pain in her back and is unable to straighten up. On his return, Robert takes her to
hospital where it is confirmed that the injury to Patricia’s spine is due to her lifting the heavy
drums. The prognosis is that the injury will heal in time and that Patricia will be able to return
to her usual duties in about 6 weeks. After Patricia has been off work for some weeks in
constant pain (neither medication nor physiotherapy help her), she decides to consult a
chiropractor who manipulates her spine but negligently and permanently damages several of
the vertebrae so that Patricia is unable to work at all in the future. Patricia sues Robert
alleging that her damage and inability to work was due to her injury sustained at work.
Advise Patricia and Robert.

Robert owes Patricia duty of care (employer)

 Kondis v STA
BREACH?
Reasonably foreseeable risk? Yes
ROBERT HAS BREACHED

CAUSATION
 But for Roberts breach, would patricia have suffered the injury?
o Yes,
 Did Robert cause the damage of spinal injury or chiropractor
o Chiro owes patricia a duty of care
 Chiro was negligent
o Mahony v Kruschich (1985)
 Not a novus actus??
 Was Particia reasonable in seeking the treatment from chiro
 Robert and chiro will be held liable for the second lot of damage.
She carried all at once  contributory negligence. Was she reasonable ?