Causation and Remoteness of Damage/Scope of Liability

Transcription

1 Causatin and Remteness f Damage/Scpe f Liability General Apprach - March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 Causatin is determined by applying the but fr test as well as cmmn sense principles t the facts f the case Prblems May lead t absurd result Tw equally sufficient causes eg. tw hunters case Bth hunters negligently sht smene at the same time But fr test wuld find neither f the hunters liable Summers v Tice (American case where this happened) nus is thrwn n the defendant t disprve negligence Distinguishing between causes and precnditins Precnditins factrs that cause the plaintiff t be at a certain place and time where the injury happens but d nt increase the risk f being injured Hw t deal with intervening events Nvus actus interveniens An intervening event that breaks the chain f causatin Determinatin f a nvus actus interveniens Hart & Hnré put frward that either a vluntary human actin r an event that was a ttal cincidence wuld cnstitute a nvus actus interveniens Masn CJ sme vluntary human actins d nt break the chain f causatin Sme actins may break as they are the kind f actins that wuld ccur if the defendant was negligent Value judgements and cnsideratins f plicy als have a rle t play in the cntext f causatin Facts f the case Appellant suffered damages t his car when he struck the defendant s truck which was parked in the middle f rad in rder t lad vegetables int it Appellant was drunk at the time primary judge apprtined 70% f the liability against the appellant Masn CJ Causatin arises in the cntext f ascertaining r apprtining legal respnsibility fr a given ccurrence Chapman v Hearse rejected reasnable fresight as a test f causatin Mahny v J Kruschich (Demlitins) Pty Ltd rejected reasnable fresight as an exclusive criterin f respnsibility

2 A line marking the bundary f the damage fr which a trtfeasr is liable in negligence may be drawn either because the relevant injury is nt reasnably freseeable r because the chain f causatin is brken by a nvus actus interveniens. But it must be pssible t draw such a line clearly befre a liability fr damage that wuld nt have ccurred but fr the wrngful act r missin f a trtfeasr and that is reasnably freseeable by him is treated as the result f a secnd trtfeasr s negligence alne Last pprtunity test was rejected by the HCA in Chapman v Hearse The causal cnnexin is established if it appears that the plaintiff wuld nt have sustained his r her injuries had the defendant nt been negligent Causatin as a questin f fact There is n tw- step prcess in determining causatin Instead it is all ultimately a matter f cmmn sense in truth the cnceptin in questin is nt susceptible f reductin t a satisfactry frmula Fitzegerald v Penn If the plaintiff s injuries were, in the rdinary curse f things, the very kind f thing likely t happen as a result f the defendant s negligence and were nt unreasnable, the jury was entitled t find that the plaintiff s injuries were caused by the defendant s negligence Nvus actus interveniens Nvus actus interveniens will nt itself break the chain f causatin Defendant s negligence must nt have expsed the plaintiff t the very risk f this happening Drset Yacht Cmpany v Hme Office Chapman v Hearse Deane J Duty f care t prtect ther users f the rad extended t include all freseeable users f the rad, including thse wh were negligent Precnditins Decapitatin example having a head is a precnditin fr being beheaded, but is nt the cause f the injury Rejects the applicatin f the but fr test - Civil Liability Act 2002 (NSW) s 5D A determinatin that negligence cause particular harm cmprises f a test f: That negligence was a necessary cnditin f the ccurrence f the harm (factual causatin) Cmmn sense test prpsed by Masn CJ plays a part in the determinatin f factual causatin That it is apprpriate fr the scpe f the negligent persn s liability t extend t the harm s caused (scpe f liability) Nvus actus interveniens cmes int the statute here

3 Test f remteness may be used t determine the scpe f liability Subsectin 2 In exceptinal cases where the actin was nt a necessary cnditin in causing the injury, the curt may find the actin indeed caused the injury Must be in accrdance with established principles In determining whether liability shuld extend t a defendant in an exceptinal case, the curt is t cnsider whether r nt and why respnsibility fr the harm shuld be impsed (3) if it is relevant t the determinatin f factual causatin t determine what the persn wh suffered harm wuld have dne if the negligent persn had nt been negligent matter is determined subjectively in the light f all relevant circumstances any statement made by the plaintiff suffering the harm abut what he r she wuld have dne is admissible Kind f damage that the plaintiff is claiming must als be recgnised by law s 5E Onus f prf Plaintiff always bears the nus f prving, n the balance f prbabilities, any fact relevant t the issue f causatin Factual Causatin - Adeels Palace Pty Ltd v Mubarak (2009) 239 CLR 420 A licensee f a licensed premises may we a cmmn law duty t take reasnable care t prevent persnal injury t a patrn n the premises by the vilent criminal act f anther patrn Plaintiff must prve that any beach f that duty caused his r her damage Civil liability legislatin, in describing hw a curt is t determine whether any breach caused the plaintiff s damage, requires the curt t apply the but fr test In determining causatin, the curt must start with sectin 5B and sectin 5D f the Civil Liability Act 2002 (NSW) Facts Defendants (appellant) carried n a restaurant business n licensed premises One New Years Eve when there was n security persnell, a fight brke ut n the premises Patrn was punched by Mubarak, left the premises and came back and sht Mubarak and secnd defendant The Curt Liqur Act makes a prvisin fr a licensee f a licensed premises t remve frm, r prevent the entry t, licensed premises f vilent r quarrelsme persns Present case was distinguished frm Mdbury Triangle Shpping Centre v Anzil as the Liqur Act impses a duty t take reasnable care t prevent r hinder the ccurrence f events which the licensee was bund t prevent ccurring

4 Althugh it is a duty directed t cntrlling the cnduct f thers it is a duty t take reasnable care in the cnduct f activities n licensed premises Breach f duty? As t whether r nt a duty was breached, sectin 5B f the CLA prvides the necessary cnditins Causatin The first f the tw elements identified in s 5D(1) is determined by the but fr test But fr the negligent act r missin, wuld the harm have ccurred? Insufficient prf that the plaintiff culd nt prve n the balance f prbabilities, that having a security guard wuld have prevented the injury Sectin 5D(2) Exceptinal case is where negligence cannt be established as a necessary cnditin f the harm Curt must then lk t established principles as t why respnsibility shuld be impsed n the defendant N reasn as t why respnsibility shuld be impsed in the current case It shuld nt be accepted that negligence which was nt a necessary cnditin f the injury that resulted frm a third persn s criminal wrngding was a cause f that injury - Strng v Wlwrths Ltd (2010) 246 CLR 152 Tw limitatins f the but fr test prescribed by s 5D(1) have been identified It prduces anmalus results in particular cases, exemplified by thse in which there is mre than ne sufficient cnditin f the plaintiff s harm It des nt address the plicy cnsideratins that are bund up in the attributin f legal respnsibility fr harm The scpe f liability inquiry may be thught t prmte clearer articulatin f the plicy cnsideratins that bear n the determinatin Scpe f Liability - Chapman v Hearse (1961) 106 CLR 112 Causatin But fr test Chapman s negligent crash still caused Cherry s injuries Reasnable freseeability is nt a test f causatin, but marks the limits beynd which a wrngder will nt be held liable It is impssible t exclude frm the realm f reasnable fresight subsequent intervening acts merely n the grund that thse acts, when examined, are fund t be wrngful Defendants that cntribute t the negligence will be liable fr damages A negligent defendant may be held liable fr expsing the plaintiff t an increased risk - Mahny v J Kruschich (Demlitins) Pty Ltd (1985) 156 CLR 522

5 A trtfeasr wh negligently has caused persnal injury t the plaintiff may be liable fr the exacerbatin f that injury as the result f negligent medical treatment by a third party Facts f the case Wrker suffered persnal injury due t the negligence f his emplyer Emplyer crss- claimed against Dr Mahny fr cntributing t the wrker s injuries and incapacities Law Refrm (Miscellaneus Prvisins) Act 1946 s 5(1)(c) allws fr jint trtfeasrs t claim cntributin frm each ther if they are jint and severally liable fr the same damage The curt A negligent trtfeasr will be liable fr the plaintiff s subsequent injury if the cnsequences [f the injury] are themselves prperly t be regarded as freseeable cnsequences f the first trtfeasr s negligence When an injury is exacerbated by medical treatment, the exacerbatin may easily be regarded as a freseeable cnsequence fr which the first trtfeasr is liable The riginal injury may carry with it sme risk that expses the plaintiff t negligent medical treatment Will nt be liable where the medical treatment was inexcusably bad - Overseas Tankship (UK) Ltd v Mrts Dck and Engineering C Ltd (The Wagn Mund (N 1)) [1961] AC 388 Reasnable freseeability f the kind f damage suffered by the plaintiff is the test f remteness f damage in mdern Australian law If the defendant culd reasnably fresee the type f damage that may happen due t their negligence, then the test f remteness is satisfied Test prpsed by The Wagn Mund (N 1) is usually the test that judges use in determining scpe f liability under s 5D Facts f the case Defendant (appellant) was the charterer f a vessel, that when mred, sme f the il being laded nt it spilled int Sydney Harbur Welding was being carried ut n the plaintiff s wharf which caught fire due t the presence f the il Privy cuncil rejected the direct result test f damage funded in Re Plemis (was the damage the direct result f the defendant s negligence?) Test f remteness f damage is whether r nt the type f damage was reasnably freseeable - Smith v Leech Brain & C [1962] 2 QB 405 Authrity fr the egg shell skull rule The defendant must take their victim as they find them As lng as the type f damage is reasnably freseeable by the defendant, the defendant is liable fr the full extent f the damage Supervening and unrelated injury r illness

6 - Whether the defendant will be held liable fr the secnd event n the injured plaintiff depends n whether the secnd injury was caused by a natural event r a secnd trt Secnd unrelated trt Baker v Willughby [1970] AC 467 Facts Defendant caused leg damage t the plaintiff Befre the trial the plaintiff was sht in the leg by rbbers had t have leg amputated Judgment Huse f Lrds held the first defendant liable fr the further damage t the plaintiff frm the secnd unrelated trt May have been influenced by the fact that secnd defendant was a rbber that escaped Secnd defendant will nly be held liable fr the exacerbatin f the injury If there is n exacerbatin, there is n liability fr secnd trtfeasr Natural event Jbling v Assciated Dairies Vicissitudes principle First defendant is nly liable fr the extent f the damage up until the knwn vicissitude takes ver - Jbling v Assciated Dairies [1982] AC 794 Where the defendant negligently has caused persnal injury t the plaintiff, a supervening illness affecting the plaintiff may be taken int accunt as a vicissitude f life negating r reducing the extent t which the defendant s negligence remains a cause f the plaintiff s damage Facts f the case Plaintiff sustained a back injury at wrk and began prceedings against his emplyers Fund that he had a cnditin affecting his neck and rendered him ttally unfit fr wrk Lrd Keith f Kinkel The vicissitudes principle says that it is right t take int accunt events, such as illness, which nt uncmmnly ccur in the rdinary curse f human life. If such events are nt taken int accunt, the damage may be greater than are required t cmpensate the plaintiff fr the effects f the accident, and that result wuld be unfair t the defendant A nn- trtius supervening event is t have the effect f reducing damages but a subsequent trtius act is nt Lrd Bridge f Harwich When a plaintiff injured by the defendant s trt is whlly incapacitated frm earning by supervening illness r accidental injury, the law will n lnger treat the trt as a cntinuing cause f any lss f earning capacity Balkin Causatin and Remteness f Damage

7 Evidence f Causatin - Plaintiff must discharge the preliminary task f submitting direct r circumstantial evidence which tends nt nly t shw hw the accident happened by which als permits a reasnable finding that the defendant s cnduct had sme effect in prducing the injury Questin f law - There are exceptinal situatins which cannt neatly be accmmdated within cnventinal causatin principles but where nnetheless gd reasn exists fr departing frm such principles t bridge the evidentiary gap Gaudrn J in Naxakis v Western General Hspital in that situatin, the trier f fact in this case, a jury is entitled t cnclude that the act r missin caused the injury in questin unless the defendant establishes that the cnduct had n effect at all r that the risk wuld have eventuated and resulted in the damage in questin in any event Analysis f Causal Cncepts - The curts d nt require the negligent act cmplained f t be the sle effective cause f the injury It must cntribute t the injury in a real r material way - Causa sine qua nn as a requirement fr the plaintiff s case If the event culd nt have ccurred unless that cnditin were present, the cnditin is necessary n that ccasin - High Curt in March v E & MH Stramare Pty Ltd pinted ut the inadequacy f the but fr test A superseding cause, amunting t a nvus actus interveniens has been held t break the chain f causatin where the earlier wrngful act, althugh regarded as an essential cnditin f the ccurrence f the ultimate harm, was nt regarded as the true cause - High Curt acknwledged in Chappel v Hart that the cnclusin f causatin is ften reached intuitively Plicy cnsideratins and value judgement als play a rle in this prcess Remteness f Damage - Legal causatin is a vastly different cncept frm factual causatin Legal causatin is essentially cncerned with the limits r extent f liability fr cnduct admittedly negligent r prven t be s - Liability fr a negligent act is limited t thse cnsequences which were nt t remte - Freseeable type f harm The harm suffered must be f a kind, type r class freseeable as a result f the defendant s negligence Prvided the class f injury is freseeable, the partular injury need nt als be freseen - The means by which the harm was caused What must be freseen is injury f a given descriptin the genus rather than the precise injury which ccurred the particulars Once the plaintiff is ne f a class f persns wh might freseeably be injured, and prvided that the damage that ccurred is f a class, kind r categry that is freseeable, the fact that the precise cncatenatin f circumstance which led up t the accident was nt envisaged will nt defeat the claim Chapman v Hearse

8 - Existing physical states A plaintiff that suffers greater damage than the rdinary persn will recver the full extent f their damage, even thugh the defendant culd nt have freseen this extended harm Smith v leech Brain & C Ltd trtfeasrs must take their victims as they find them - Ulterir harm Harm caused by a cntingency which ccurs after the event which the defendant failed t fresee and guard against, and which is causally independent f that event If the ulterir harm is such as t break the chain f causatin, the riginal defendant will nt be respnsible fr the ensuing cnsequences Later act r event is a nvus actus interveniens Whether the chain f causatin has been brken depends n the facts f each particular case Freseeability is nt in itself a test f causatin, but simply marks the uter limits f respnsibility