Causation: s 5C

Causation: s 5C

1. I. Factual Causation

   • Wallace: involves a question of historical fact as to how particular harm occurred.
   • A. s 5C(1)(a): Necessary Condition Test
     • Adeels Palace Pty Ltd (HCA): But for the negligent act/omission, would the harm have occurred?
   • B. s 5D: Onus of Proof
     • Fitzpatrick: P to prove on the BOP (> 50%) what would probably have eventuated had D's negligence not occurred.
     • Amaca: In cases of >1 D, D's negligence need not be sole necessary condition of P's harm.
     • Bank of NSW: Court must reduce to legal certainty of the harm caused to which no other conclusive answer can be given.
     • Cox: Failure of D-school to address persistent bullying which resulted in P facing problems was a probable necessary condition although D-bully was at fault.
   • C. s 5C(3): Case About What P Would Have Done
     • Rosenberg: HCA held on BOP that P-nurse would've undergone surgery despite receiving the warning of risk. "Due to human nature, most persons genuinely believe they wouldn't undergo procedure if they were warned of the risk."
   • D. s 5C(2): Exceptions & Difficulties with But-for Test
     • Fairchild (HL): P unable to prove on BOP which D exposed them to fibre which caused them to contract disease. However, held that each D 'materially increased risk of P contracting disease, therefore, liable.
     • NOTE: AUS courts generally shied away from applying this exception.

2. II. Scope of Liability

   • A. Novus Actus Interveniens
     • Haber: P's suicide was a result of severe depression from injury caused by D's negligent driving.
     • March (HCA): D's wrongful conduct generated the very risk of injury to which P was contributorily liable to. D still liable 30%.
     • State Rail Authority of NSW: Mental harm caused from sexual assault broke chain of causation. D only caused P physical injuries from slippery stairs, not sexual assault by another person. Not RF that young woman immobilised would be exposed to criminal sexual assault.
   • B. Remoteness
     • Overseas Tankship: If P's injuries too remote from D's negligent conduct, inappropriate for scope of liability to extend to D. P's injuries not too remote where the kind of injury to P was a reasonably foreseeable consequence of D's breach.
     • Hughes & Mount Isa Mines Ltd: Neither extent (eggshell skull rule) nor manner in which injury occurred need to be foreseeable. So long as the kind of injury is foreseeable.
     • Nader: Eggshell skull rule not confined to physical and constitutional characteristics of individual but also weaknesses, beliefs, reactions, capacities, attributes.
     • Mount Isa Mines: Foreseeability is not foresight. Liability for nervous shock depends on foreseeability of recognizable psychiatric illness.
   • March: Factor which places P at location & time of harm is not casually connected with the injury, unless risk of accident occurring at that time was greater.
   • Wallace: Involves a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person.

3. DEFENCES

   • 1. Contributory Negligence
     • Joslyn: P guilty of CN when P exposes himself to risk of injury which might have been RF and avoided and suffers injury within the class of risk.
     • Law Reform changed CL defence of CN to partial defence instead of complete.
     • A. Breach
       • s 5K: Foreseeable risk + Failure to take precaution
       • Consolidated Broken Hill Ltd: Reasonable person wouldn't have crossed the bridge, realising the obvious danger.
       • Carey: P obliged to look out for own safety by cycling at appropriate speed and taking reasonable care to avoid obstruction.
       • Modified SOC: Children: SOC of reasonable child (McHale, Doubleday) Employees: SOC more lenient (McLean, Cztyrko) Intoxicated Ps (Self induced is CN: s 5L(2))
     • B. Causation: P's breach must contribute to their harm.
       • Gent-Diver: P not CN because P accepted lift knowing headlights not working, not reckless riding.
       • O'Connell: P CN due to failure to wear helmet.
     • C. Apportionment: Considered by Court (s 4)
       • Podrebersek: Compare culpability; casual potency (acts of parties causing dmg)
         • Pennington: 'culpability' = degree of departure from SOC
       • Wynbergen: P can't be found 100% liable
         • Consolidated, Carey: 50/50
   • 2. Volenti
     • No injury done to one who voluntarily assents. Roggenkamp: P must perceive existence of danger and fully appreciated it and voluntarily accepted the risk.
       • A. Full knowledge of risk/danger (Subjective Test)
         • Gent-Diver: No VAR, P assumed risks associated with no headlights, not recklessness.
         • Rootes: No VAR, P not perceived risk of collision with moored boat while water-skiing dangerous stunts.
       • B. Voluntarily accepted risk
         • Carey: No VAR, P did not voluntarily accept risk as he was not aware of risk.
         • Imperial Chemical Industries Ltd: VAR, P disobeyed warnings and proceeded with dangerous act.
     • s 5N: 1. Prove Obvious Risk (s 5F definition) 2. Prove P voluntarily accepted risk.
       • Doubleday: No obvious risk to a child (Subjective test)
       • Jaber: obvious risk as reasonable person wouldn't have dived head first into shallow water.
       • Carey: Obvious risk of cycling in dark, but did not voluntarily accept risk.
   • 4. Statutory Defences
     • s 5O (No duty to warn of obvious risk), s 5H (No liability for harm from obvious risks of dangerous recreational activity)
   • 3. Joint Illegal Enterprise (Gala: No Defence)