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TORTS LECTURE 7

TORTS LECTURE 7. CAUSATION & DAMAGE PARTICULAR DUTY AREAS (a) Products Liability (b) Defective Structures (c) Nervous Shock. Damage in Negligence. Duty of care. Negligence. Breach. Damage. Damage in Negligence. Duty of care. Negligence. Breach. Damage. Damage in Negligence.

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TORTS LECTURE 7

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  1. TORTS LECTURE 7 CAUSATION & DAMAGE PARTICULAR DUTY AREAS (a) Products Liability(b) Defective Structures(c) Nervous Shock

  2. Damage in Negligence Duty of care Negligence Breach Damage

  3. Damage in Negligence Duty of care Negligence Breach Damage

  4. Damage in Negligence • Damage is the gist of the action in Negligence • The scope of actionable damage: • property • personal • mental • pure economic loss • Damage must be actual for compensation; no cause of action accrues until damage • Limitations period therefore begin from the time of the injurious consequences of a conduct not from when the conduct first occurred

  5. Damage in Negligence • For P to be successful in an action in Negligence, D’s breach of duty must cause damage to P or his/her property

  6. CAUSATION Duty of Care breach damage = Negligence causation There must be a causal link between D’s breach of duty and damage to P or P’s property

  7. CAUSATION: THE ELEMENTS • Causation involves two fundamental questions: • the factual question whether D’s act in fact caused P’s damage: causation-in-fact • Whether, and to what extent D should be held responsible for the consequences of his conduct: legal causation

  8. CAUSATION-IN-FACT • Causation in fact relates to the factor(s) or conditions which were causally relevant in producing the consequences • Whether a particular condition is sufficient to be causally relevant depends on whether it was a necessary condition for the occurrence of the damage • The necessary condition: causa sine qua non

  9. CAUSATION • To be successful in a claim for a remedy, P needs to prove that the loss for which he/she seeks compensation was caused in fact by the D’s wrongful act • Traditionally, the test whether D’s wrongful act did in fact cause the loss is the ‘but for’ test

  10. THE ‘BUT FOR’ TEST • But for the D’s conduct, the injury to P would not have happened: • Waller v James (Wrongful life)

  11. THE FUNCTION OF THE ‘BUT FOR’ TEST • Two functions: • The primary (negative) function is to assist in eliminating factors which made no difference to the outcome • The second (positive) function: it helps to identify a condition or a factor which may itself then be subject to a test of legal causation

  12. THE ‘BUT FOR’ TEST IN THE HIGH COURT • Fitzgerald v Penn ( 1954) 91 CLR 268 • ‘Causation is all ultimately a matter of common sense….[It] is not susceptible of reduction to a satisfactory formula’(per Dixon, Fullagar and Kitto JJ) • March v E& MH Stramare (1991) 171 CLR 506*The but for test gives rise to a well known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiffs injury. The application of the tests gives the results, contrary to common sense, that neither is a cause. The application of the tests proves to be either inadequate or troublesome in various situations in which there aremultiple acts or events leading to the plaintiff's injury(per Mason J)

  13. THE ‘BUT FOR’ TEST: IMPLICATIONS OF A COMMON SENSE APPROACH • Bennett v Minister of Community Welfare (1992) 176 408 • ‘if the but for test is applied in a practical common sense way, it enables the tribunal of fact, consciously or unconsciously, to give effect to value judgments concerning responsibility for the damage. If ..the test is applied in that way, it gives the tribunal an unfettered discretion to ignore a condition or relation which was in fact a precondition of the occurrence of the damages’

  14. THE ‘BUT FOR’ TEST IS NOT EXHAUSTIVE • Bennett: ‘ causation is essentially a question of fact to be resolved as a matter of common sense. In resolving that question, the ‘but for’ test , applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exhaustive test of causation; value judgments and policy considerations necessarily intrude (per Mason CJ , Deane and Toohey JJ)

  15. MULTIPLE CAUSES • Where the injury or damage of which the plaintiff complains is caused by D’s act combined with some other act or event, D is liable for the whole of the loss where it is indivisible; where it is divisible, D is liable for the proportion that is attributable to him/her

  16. MULTIPLE CAUSES: TYPES • Concurrent sufficient causes • where two or more independent events cause the damage/loss to D ( eg, two separate fires destroy P’s property) • Successive sufficient causes Baker v Willoughby Jobling v Associated Dairies Ltd (dormant spondylotic myelopathy activated) Malec v Hutton (possible future spinal condition) • D2 is entitled to take P (the victim) as he finds him/her • Where D2 exacerbates a pre-existing loss/injury (such as hasten the death of P) D2 is liable only for the part of the damage that is attributable to him

  17. THE ELEMENTS OF CAUSATION Causation Legal Factual (Causation in fact)

  18. THE ELEMENTS OF CAUSATION Causation Legal Factual (Causation in fact)

  19. LEGAL CAUSATION • Factual causation in itself is not necessarily sufficient as a basis for D’s liability • To be liable, D’s conduct must be the proximate cause of P’s injury • P’s harm must not be too remote from D’s conduct

  20. REMOTENESS • The law cannot take account of everything that follows a wrongful act; it regards some matters as outside the scope of its selection. In the varied wave of affairs, the law must abstract some consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons Per Lord Wright Liebosch Dredger v SS Edison [1933] AC 449

  21. Case Law on Remoteness • Earlier position in Common Law • Re Polemis:- the ‘directness element’ • The current position: • The Wagon Mound (No. 1) • The Wagon Mound (No. 2)

  22. INTERVENING ACT • An intervening act breaks the chain of causation and may relieve D of liability. To be sufficient to break the chain, it must either be a: • human action that is properly to be regarded as voluntary or a causally independent event the conjunction of which with the wrongful act in or omission is by ordinary standards so extremely unlikely as to be turned a coincidence ( Smith J Haber v Walker [1963] VR 339

  23. INTERVENING ACT • A foreseeable ‘intervening act’ does not break the chain of causation • Chapman v Hearse • Negligent medical treatment subsequent to negligent injury would not necessarily remove liability for D1 unless the subsequent injury was ‘inexcusably bad’, so obviously unnecessary or improper that it fell outside the bounds of reputable medical practice • (Mahony v J Kruschich Demolitions)

  24. THE LAW OF TORTS PARTICULAR DUTY AREAS (a) Products Liability(b) Defective Structures(c) Nervous Shock

  25. PRODUCT LIABILITY • Common law: • Donohue v Stevenson [1932] AC 562 • Grant v Australian Knitting Mills [1936] AC 85

  26. PRODUCT LIABILITY • Relevant Statutes: Sale of Goods Act 1923 (NSW) Pt 4 Performance of the Contract (ss.30 to 40) Pt 5 Rights of the Unpaid Seller Against the Goods (ss.41 to 50) Pt 6 Actions for Breach of the Contract (ss.51 to 56)

  27. PRODUCT LIABILITY • Relevant Statutes: • Fair Trading Act (NSW) Pt 4 Consumer Protection (ss.38 to 40) Pt 5 Fair Trading (ss.41 to 60, including s.42 Misleading or deceptive conduct and s.44 False representations)

  28. PRODUCT LIABILITY • Relevant Statutes: • Trade Practices Act 1974 (Cth) Pt V Div 1 Consumer Protection (ss.51AF to 65A, including s.52 Misleading and deceptive conduct) Pt V Div 2A Actions against manufacturers and importers of goods (ss.74A to 74L) Pt VA Liability of manufacturers and importers for defective goods

  29. DEFECTIVE STRUCTURES • Professional negligence: - s.5O Civil Liability Act 2002 “Peer professional opinion” (ie. The UK “Bolam” test) • S.5P Civil Liability Act 2002 “Duty to warn” remains • Builders: Bryan v Maloney (1995) ATR 81- 320 • Architects: Voli v Inglewood Shire Council (1963) 110 CLR 74

  30. DEFECTIVE STRUCTURES • Councils & Statutory Authorities: • Pt 5 Civil Liability Act 2002 - s.42 determining duty of care and breach of duty in relation to functions, allocation of resources, range of activities and reliance on general procedures/applicable standards; s.43 act or omission not a breach unless unreasonable; s.44; s.45 Restoration of the non-feasance protection for highway authorities • Common law: Heyman v Sutherland Shire Council (1985) 157 CLR 424 Shaddock v Parramatta CC [No.1] (1981) 150 CLR 424 Parramatta CC v Lutz (1988) 12 NSWLR 293 Brodie v Singleton Shire Council Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512

  31. NERVOUS SHOCK • What is nervous shock • An identifiable mental injury recognised in medical terms as a genuine psychiatric illness. • The sudden sensory perception that , by seeing hearing or touching – of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognizable psychiatric illness • It is a question of fact whether it is reasonably foreseeable that the sudden perception of that phenomenon might induce psychiatric. • Pt 3 Civil Liability Act 2002 “Mental harm” (ss.27 to 33), especially: • S.30 Limitation on recovery for pure mental harm arising from shock ie. Witness at the scene the victim being killed, injured or put in peril, or the plaintiff is a close family member of the victim • S.32 Duty of care ie. Defendant ought to have foreseen that a person of normal fortitude might… suffer a recognisable psychiatric illness if reasonable care were not taken.

  32. Nervous Shock:The The Nature of the Harm • The notion of psychiatric illness induced by shock is a compound, not a simple, idea. Its elements are, on the one hand, psychiatric illness and, on the other, shock which causes it. Liability in negligence for nervous shock depends upon the reasonable foreseeability of both elements and of the causal relationship between them • Post-Traumatic Stress Disorder • Pathological grief disorder

  33. THE VICTIMS • Primary victims • What needs to be reasonably foreseeable ? Some personal injury, physical or psychiatric, to the primary victim • Page v Smith [1996] 1 AC 155 (HL) a victim of a road accident caused by another's negligence claimed damages solely for psychiatric illness • Secondary Victims • Close relationship • Jaensch v Coffey • S.30 Civil Liability Act “Close member of the family” and “spouse or partner” defined • proximity/nearness to accident or aftermath • Bourhill v Young • Mount Isa Mines v Pusey

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