LAW 1507 Lecture Notes - Lecture 7: No Liability, Aust, Blood Transfusion
23 May 2018
School
Department
Course
Professor
Causation (and Remoteness)
No one can be liable for loss that did not occur as a result of their negligence- link accident
and causation
The proper starting point in causation is the legislation (Adeels Palace Pty Ltd v Moubarak
239 CLR 420 ) P is to prove causation on the balance of probabilities (s 35 CLA)
Fatual ausatio is addessed though the ut fo test desied i s a of the CLA. This
is to be applied in conjunction with common sense (March v (E & M) Stramare Pty Ltd (1991)
171 CLR 506).
Legal causation is required by s 34(1)(b) of the CLA. There are no issues concerning this. OR
The issue is hethe As liailit should eted to the eaeatio of Bs iju s -
consider novus/ concurrent sufficient/ subsequent tortious OR
It ust e appopiate fo Ds liailit to extend to the harm caused (s 34(1)(b). In this
instance, there Is a second tortious event by F. This is similar to the facts of Baker v
Willoughby, where a second tortious event occurred after the first and the court held the
first tortfeasor not to be relieved of liability by the second tort. The second tortfeasor is only
liable for additional loss. Therefore, D will only be liable for damages relating to the injury
caused. F will be liable for additional loss resulting from the injury he/ she caused.
But for test
Process of determining causation.
Two libs writte i legislatio ALWAYS start with LEGISLATION
1. Historical. Question of fact: would the harm that the plaintiff suffered have happened but
for the wrongful act of the defendant? ((s34(1)(a) CLA) (is it a part of the story?) courts
have generally addressed by applying common sense to the facts.
2. Normative. Question of law: Given that 1 is satisfied, are there any value judgments,
reasons of policy or other grounds for denying an obligation to compensate the plaintiff?
(s34(1)(b) CLA)
o First step is a historical question, the second is a normative enquiry (Godfrey v New South
Wales (2003) Aust Tort Reports 81- 700
o Subsequent tortious event?
o Novus? Explain their characteristics before applying.
o liability extends not increases
o Cause injuries not accident- state specific injury suffered
find more resources at oneclass.com
find more resources at oneclass.com
o But fo Ds atios…The ut fo test is uale to deal ith ultiple auses of
causation
i.e. if a house is burnt down by two fires, it would have still burnt down 'but for' each
of the fires (because of the other one), and the court could not determine causation.
o But for Test is therefore no longer an exclusive test
March v Stramare (1991) 171 CLR 506
Facts: The Defendant [Stramare] parked a truck in the middle of the road whilst they were
unloading items into a shop. This was in the early hours of the mornings. The Plaintiff [March]
was driving (speeding and drunk) and hit into their truck, suffering physical damages.
Issue: The Defendant alleges that it was the negligent driving of the Plaintiff which was the
cause of his harm, and not the Defendant's negligence in parking the truck.
Judgement
Mason CJ:
o The 'but for' test fails on two accounts - cases which involve multiple causes and cases
in which there is an intervening act. Thus, it is not an exclusive test of causation.
o In such cases, a value judgment of common sense and policy considerations are
needed to supplement the 'but for test'.
o An act cannot be considered an intervening act (which breaks causation) if that act
was also the result of the original tortfeasor's negligence.
Causal Connection
o Necessary causal connection generally established if the plaintiff proves that he or
she would not have been injured if the defendant had not been negligent.
Chappel v Hart (1998) 195 CLR 232 , per McHugh J, [34]
o Causal connection must be clear and unambiguous
o the onus of proving that the failure to warn was causally connected with the plaintiff's
harm lies on the plaintiff
Multiple Causes
concurrent sufficient causes
o Minister of Pensions v Chennell [1947] KB 250:
"Where the wrong is a tort, it is clearly settled that the wrongdoer cannot excuse
himself by pointing to another cause. It is enough that the tort should be a cause and
it is unnecessary to evaluate competing causes and ascertain which of them is
doiat”
o In cases where there are multiple cases to the plaitiffs ha, ad it is diffiult to
prove which wrong doer is directly responsible- all negligent Ds will be held
concurrently liable.
o Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89 (see below)
Concurrent causes, neither being sufficient on its own to cause the loss
find more resources at oneclass.com
find more resources at oneclass.com
o Original tortfeasor will continue to be liable for their share of the damage, regardless
of the fact that harm would have happened anyway due to the second event.
o Two tortious events. If a later casual event does not extinguish or diminish the loss,
then the original tortfeasor remains liable for all the loss which he or she originally
caused to the P (Baker v Willoughby)
o Loss ight ot flo fo the Ps egligee, ut fo a peious totuous at
(Performance Cars v Abraham)
o Whee the oetakig eet is a iissitude of life Jolig Assoiated Diaies
o Two tortious events: no extra damage/ loss caused by subsequent event. No liability
to second tortfeasor for loss they have not caused. (distinguish from novus)
(Performance Cars)
Subsequent Tortfeasor Two tortious event with additional loss caused by subsequent event: does not
relieve original tortfeasor of liability. Subsequent only liable for additional loss. (Baker)
Subsequent non-tortious event (certain to happen) One tortious and one natural event: liability only
extends to the point in time which the natural event would have had an impact on the life of P.
E.g. Loss of earning capacity only to be aid until illness would have prevented the P from working
anyway (Jobling)
Subsequent non-tortious event (uncertain to happen) liability reduced by the percentage of likelihood
that the illness would have overtaken the P. P compensated residual contingency that the additional
loss would not have occurred. When there are uncertainties: the court will endeavour to determine
probabilities and adjust liability accordingly
(Malec)
Intervening Act (Novus)
o The chain of causation will be broken completely and a claim defeated where the loss
is a result of a novus actus interveniens which intrudes on events set in motion by D
and resultantly contributes to the loss or changes the outcome. A _______
constitutes a novus (precedent that is relevant to action).
o An act qualifies as an intervening act if it is either
i) A completely voluntary human action.
ii) An independent event which is so unrelated and unforeseeable (to the
original tortfeasor's conduct) that it can be called a coincidence.
iii) Note: aggravation of injuries through medical treatment will not be
counted as intervening acts unless the medical treatment was 'inexcusably
bad'
i. Deliberate and unreasonable conduct of P will be a novus. (McKew v Holland Hannen
& Cubitts Ltd [1969]
ii. However, not a novus when: reasonable conduct (GIO v Oakley [1990]) (Medlin v
SGIC) returned to work for financial necessity
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
No one can be liable for loss that did not occur as a result of their negligence- link accident and causation. The proper starting point in causation is the legislation (adeels palace pty ltd v moubarak. 239 clr 420 ) p is to prove causation on the balance of probabilities (s 35 cla) Fa(cid:272)tual (cid:272)ausatio(cid:374) is add(cid:396)essed th(cid:396)ough the (cid:858)(cid:271)ut fo(cid:396)(cid:859) test des(cid:272)(cid:396)i(cid:271)ed i(cid:374) s (cid:1007)(cid:1008)(cid:1005)(cid:894)a(cid:895) of the cla. This is to be applied in conjunction with common sense (march v (e & m) stramare pty ltd (1991) Legal causation is required by s 34(1)(b) of the cla. The issue is (cid:449)hethe(cid:396) a(cid:859)s lia(cid:271)ilit(cid:455) should e(cid:454)te(cid:374)d to the e(cid:454)a(cid:272)e(cid:396)(cid:271)atio(cid:374) of b(cid:859)s i(cid:374)ju(cid:396)(cid:455) (cid:894)s (cid:1007)(cid:1008)(cid:894)(cid:1005)(cid:895)(cid:894)(cid:271)(cid:895)(cid:895)- consider novus/ concurrent sufficient/ subsequent tortious or. It (cid:373)ust (cid:271)e app(cid:396)op(cid:396)iate fo(cid:396) d(cid:859)s lia(cid:271)ilit(cid:455) to extend to the harm caused (s 34(1)(b). In this instance, there is a second tortious event by f. this is similar to the facts of baker v.
