MLL213 Study Guide - Final Guide: Gett, Legal Certainty, Absolute Liability
24 May 2018
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7 Causation
Oe a eah of dut estalished, P ust the poe a asual lik etee Ds eah of
dut ad Ps ha.
P always bears the burden of proving, on the balance of probabilities, any fact relevant to
the issue of causation. S 52 Wrongs Act.
Once casual link established on the balance of probabilities, the daage eoes a legal
etait ad P a eoe the full aout of the daage.
RTA v Royal (2008) HCA 19
• Collision between R and S, S sued R and RTA for negligence.
• held that any fault in the design of the intersection did not contribute to the particular
accident. It was insufficient to suggest that there was a statistical possibility of an accident at
the intersection because it was not the best design. To hold the RTA liable would be to
impose something approaching absolute liability. The cause was driver error.
Amaca Pty Ltd v Ellis (2010) HCA 5 at (70)
• P failed because could not establish on balance of probabilities that the lung cancer would
ot hae oued ut fo the eposue to asestos:
• No eidee that eposue to asestos aloe aused M Cottos ae
• Epidemiological evidence that the combination of smoking and exposure to asbestos can
increase risk of lung cancer: but no evidence that they must work together to increase risk
• Inference could not be drawn from epidemiological evidence that combination of smoking
and asbestos exposure had actually caused Ps ae: Medial eidee that Ps hea
smoking by far the most probable cause of his lung cancer
• Koig that ihalig asestos can cause cancer does not entail that in this case it probably
did: at [68].
•
Tabet v Gett (2010) HCA 12
• G odeed suge hih ast pefoed o T, she suffeed seizue ad ieesile
damaged after surgery to remove tumour.
• Held: ruled against a lost chance of a better medical outcome being compensable at law. It
alloed D Getts appeal. It said that even if a loss of chance claim was valid, the trial judge
had erred in his calculation of the lost chance. The medical evidence could only establish that
the appellant had lost a 15% chance of a better medical outcome.
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FACTUAL CAUSATION
Was the defedats egligee a eessa oditio of the ouee of
the harm?
But fo the defedats negligence would P have suffered harm?
Ds egligee does ot hae to e the sole ause, ut it ust e a ause, i.e. a eet
without which the accident would not have occurred.
Thus, ust sho that Ds egligee ause i.e. as the sole ause o ateiall
contributed (was one of the causes) of the accident.
INFERENCES
But fo ausatio ight e estalished as a atte of ifeee fo the suoudig
circumstances.
Adeels Palace Pty Ltd v Moubarak (2009) HCA 48
• But fo test of fatual ausatio ot estalished
• No evidence that presence of security staff would have deterred or prevented the re-entry of
a man armed with a gun that he was ready and willing to use on persons unconnected with
the previous altercation; gunman bent on revenge, not acting rationally
• Mere possibility that security guards could have prevented the shootings insufficient; must be
a probability
•
Strong v Woolworths Limited t/as Big W (2012) HCA 5
• Lady fell on a chip and sued.
• the Court of Appeal stated that it could not be concluded that, had there been a proper
cleaning system, it was more likely than not that the chip would have been detected and the
plaintiff would not have slipped.
• it will often be enough for the issue of causation to be decided adversely to a defendant if it is
open to the court to fid o the alae of poailities that the plaitiffs iju ould ot
have occurred had the defendant complied with its duty of care.
•
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But the evidence must support an inference that the negligent act was the probable cause
of the harm, not just a possible cause.
WRONGFUL DIAGNOSIS OR TREATMENT
Daages ot aailale i Austalia fo loss of a hae of a ette edial outoe ie. loss
of hae damages
FAILURE TO WARN OF A MEDICAL RISK
Lithgow City Council v Jackson (2011) HCA 36
• P slipped o hip. “ued. Oigiall held that D shoulde had a pope leaig sste.
• Fount that: In those circumstances, the majority found that, since the evidence did not
permit a finding as to when the chip was dropped onto the floor in the sidewalk area, it was
an error for the Court of Appeal to hold that it could not be concluded that the chip had been
on the ground long enough for it to have been detected and removed by the operation of a
reasonable cleaning system.
•
•
Hotson v East Berkshire Area Health Authority (1987) AC 750
• Doctor not liable for misdiagnosis unless it caused the harm on balance of probabilities (51%)
• Straightforward application of ut fo test: P ust poe on the balance of probabilities
that, ut fo Ds egligee, the ha ould ot hae oued
Tabet v Gett (2010) HCA 12
• Daage is the gist of the ause of atio i egligee;
• P must establish causal link between breach of duty and harm
• Standard of proof is the balance of probabilities (ie a greater than 50% probability).
• Where probability of harm is < or = 50%, causal link not established
• Where a > 50% probability, P gets 100% of damages; where <= 50%, P gets nothing (all or
nothing)
• The ha is the odil iju, ot the loss of oppotuit to seue a ette edial
outcome
• See also Crennan J:
• Radical change in standard of proof; would require legislative intervention
• Policy considerations: defensive medicine; impact on Medicare, private insurance and
professional indemnity
•
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Document Summary
O(cid:374)(cid:272)e a (cid:271)(cid:396)ea(cid:272)h of dut(cid:455) esta(cid:271)lished, p (cid:373)ust the(cid:374) p(cid:396)o(cid:448)e a (cid:272)asual li(cid:374)k (cid:271)et(cid:449)ee(cid:374) d(cid:859)s (cid:271)(cid:396)ea(cid:272)h of dut(cid:455) a(cid:374)d p(cid:859)s ha(cid:396)(cid:373). Collision between r and s, s sued r and rta for negligence. held that any fault in the design of the intersection did not contribute to the particular accident. It was insufficient to suggest that there was a statistical possibility of an accident at the intersection because it was not the best design. To hold the rta liable would be to impose something approaching absolute liability. P always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation. Once casual link established on the balance of probabilities, the da(cid:373)age (cid:271)e(cid:272)o(cid:373)es a (cid:858)legal (cid:272)e(cid:396)tai(cid:374)t(cid:455)(cid:859) a(cid:374)d p (cid:272)a(cid:374) (cid:396)e(cid:272)o(cid:448)e(cid:396) the full a(cid:373)ou(cid:374)t of the da(cid:373)age. Amaca pty ltd v ellis (2010) hca 5 at (70)
