1. TORTS Causation

2. [1] GENERAL:CAUSATION breachdamage = Negligence There must be a causal link between D’s breach of duty and damage to P or P’s property Duty of Care causation

3. Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound 1) The facts: The facts: The rule: the replacement of ‘direct’ cause (Re Polemis )with reasonably foreseeable’ The rule: the replacement of ‘direct’ cause (Re Polemis )with reasonably foreseeable’ It is not the hindsight of a fool, but the foresight of a reasonable man which alone can determine liability (per Viscount Simonds) It is not the hindsight of a fool, but the foresight of a reasonable man which alone can determine liability (per Viscount Simonds)

4. CAUSATION: THE ELEMENTS Causation involves two fundamental questions: 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

5. CLA s5D (1) A determination that negligence caused particular harm comprises the following elements: (1) A determination that negligence caused particular harm comprises the following elements:negligenceharmnegligenceharm –(a) that the negligence was a necessary condition of the occurrence of the harm ( "factual causation" ), and negligenceharmnegligenceharm – (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability" ). harm (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.scope of liabilitycourtharmscope of liabilitycourtharm

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

7. CAUSATION-IN-FACT Causation in fact relates to the factor(s) or conditions which were causally relevant in producing the consequences 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 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 The necessary condition: causa sine qua non

8. 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 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 Traditionally, the test whether D’s wrongful act did in fact cause the loss is the ‘but for’ test

9. Kavanagh v Akhtar Facts:a Muslim woman who was physically injured while shopping was forced by the medical condition she had to then cut her previously long hair… Husband rejects her causing her to suffer depression Facts:a Muslim woman who was physically injured while shopping was forced by the medical condition she had to then cut her previously long hair… Husband rejects her causing her to suffer depression –In any event, the possibility that a person will desert a partner who has been disfigured in the eyes of the deserter is sufficiently commonplace to be foreseeable (Per Mason J) It was not necessary that the defendant should have foreseen the precise nature of the consequences of his act. In the present case, the plaintiff’s psychiatric illness was foreseeable It was not necessary that the defendant should have foreseen the precise nature of the consequences of his act. In the present case, the plaintiff’s psychiatric illness was foreseeable

10. Chapman v Hearse; Jolley V Sutton The place of intervening acts in causation The place of intervening acts in causation Jolley v Suttton Jolley v Suttton –P then aged 14, sustained serious spinal injuries in an accident. It arose when a small abandoned cabin cruiser, which had been left lying in the grounds of the block of flats, fell on Justin as he lay underneath it while attempting to repair and paint it. As a result he is now a paraplegic. –D held liable; what must have been foreseen is not the precise injury which occurred but injury of a given description. The foreseeability is not as to the particulars but the genus.

11. MATERIAL CONTRIBTION In general, it is not sufficient for a plaintiff to show that the negligence was one of several possible causes; It needs to be demonstrated that D’s conduct was the most probable cause of P’s damage. In general, it is not sufficient for a plaintiff to show that the negligence was one of several possible causes; It needs to be demonstrated that D’s conduct was the most probable cause of P’s damage. In Common Law, it is also not enough for P to show that D’s conduct materially increased the risk to D. P needs to prove that D’s conduct materially caused the damage In Common Law, it is also not enough for P to show that D’s conduct materially increased the risk to D. P needs to prove that D’s conduct materially caused the damage

12. MATERIAL CONTRIBUTION Bonnington Castings v Wardlaw [1956] AC 613 Bonnington Castings v Wardlaw [1956] AC 613 –The plaintiff had a lung disease because of fumes the employer had exposed him to, plus he had exposed himself to smoke – issue whether employer had caused the disease? –The plaintiff had a lung disease because of fumes the employer had exposed him to, plus he had exposed himself to smoke – issue whether employer had caused the disease? –House of Lords held: P must make it appear at least that on the balance of probabilities the breach of duty caused or materially contributed to his injury

13. MATERIAL CONTRIBUTION Chappel v Hart (1998) 156 ALR 517 Chappel v Hart (1998) 156 ALR 517 –Court noted that the Plaintiff must show the Defendant’s action materially contributed to the Plaintiff’s injury

14. INCREASE IN MATEARIAL RISK M’Ghee v National Coal Bd (1972) 3 All ER 1008 M’Ghee v National Coal Bd (1972) 3 All ER 1008 –The P claimed employer’s failure to provide showers to wash away residue caused his dermatitis - the doctors were not certain if showers would have stopped the plaintiff contracting dermatitis D held liable but mainly on policy grounds Wilsher v Essex Area Health Authority (1988): Wilsher v Essex Area Health Authority (1988): –a premature baby negligently received an excessive concentration of oxygen and suffered retrolental fibroplasia leading to blindness. However the medical evidence demonstrated that this can occur in premature babies who have not been given excessive oxygen, and there were four other distinct conditions which could also have been causative of the fibroplasia –M’Ghee distinguished on the grounds that there was only one causal candidate (brick dust)

15. Bailey v The Ministry of Defence & Anor (2008) The claimant aspirated her vomit leading to a cardiac arrest that caused her to suffer hypoxic brain damage. There was evidence of negligence by the medical team The claimant aspirated her vomit leading to a cardiac arrest that caused her to suffer hypoxic brain damage. There was evidence of negligence by the medical team the question: what caused her to aspirate her vomit. the question: what caused her to aspirate her vomit. –Issue: whether the negligence had "caused or materially contributed to" the injury –Held: If the claimant could have established on the balance of probabilities that 'but for' the negligence of the defendant the injury would not have occurred, she would have been entitled to succeed. –The instant case involved cumulative causes acting so as to create a weakness so that she could not prevent the aspiration

16. INCREASE IN MATERIAL RISK VERSUS MATERIAL CAUSATION “A material increase in the risk of injury by a defendant is not legally equated with a material contribution to the injury by a defendant. However, in some circumstances if it were proved that the defendant did materially increase the risk of injuring the plaintiff then the court might infer causation, i.e. that the defendant’s negligence materially contributed to the injury (Wallaby Grip (BAE) Pty Ltd (in liq) v MacLeay Area Health Service ) “A material increase in the risk of injury by a defendant is not legally equated with a material contribution to the injury by a defendant. However, in some circumstances if it were proved that the defendant did materially increase the risk of injuring the plaintiff then the court might infer causation, i.e. that the defendant’s negligence materially contributed to the injury (Wallaby Grip (BAE) Pty Ltd (in liq) v MacLeay Area Health Service )

17. Causation principles under the CLA: s5D (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party

18. 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 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

19. MULTIPLE CAUSES: TYPES Concurrent sufficient causes 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 Successive sufficient causes Baker v Willoughby; Faulkner v Keffalinos; Baker v Willoughby; Faulkner v Keffalinos; – 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

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

21. LEGAL CAUSATION Factual causation in itself is not necessarily sufficient as a basis for D’s liability 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 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 P’s harm must not be too remote from D’s conduct

22. REMOTENESS The law cannot take account off 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 The law cannot take account off 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

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

24. 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: 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

25. INTERVENING ACT 2 A foreseeable ‘intervening act’ does not break the chain of causation 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 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)

26. The Law of Torts Particular Duty Areas: Product Liability Abnormal Plaintiffs Unborn Children

27. Liability for Defective Products: The Scope Product liability as a regime for protecting consumer rights: Product liability as a regime for protecting consumer rights: –Defective structures/premises (as products?) –Consumer goods as products

28. Product Liability: Evolution in Common Law Originally in Common Law, a consumer in receipt of defective goods (including goods that caused injury to the consumer because of defects) was protected by the warranties implied in the contract of sale Originally in Common Law, a consumer in receipt of defective goods (including goods that caused injury to the consumer because of defects) was protected by the warranties implied in the contract of sale The implied warranties was later incorporated into statutes: The implied warranties was later incorporated into statutes: –Sale of goods Act 1983 (UK) –Sale of Gods At 1923 (NSW)

29. The Difficulties with Implied Warranties Warranties do not ‘run’ with goods. It is simply an element of the contract and does not therefore attach to the goods as such Warranties do not ‘run’ with goods. It is simply an element of the contract and does not therefore attach to the goods as such There is generally no ‘ vertical privity’ between the manufacturer and the ultimate consumer let alone between wholesalers and the ultimate consumers There is generally no ‘ vertical privity’ between the manufacturer and the ultimate consumer let alone between wholesalers and the ultimate consumers Privity of contract ‘remained a recalcitrant obstacle to the extension o warranties between the manufacturer and the ultimate consumer ‘ (Fleming) Privity of contract ‘remained a recalcitrant obstacle to the extension o warranties between the manufacturer and the ultimate consumer ‘ (Fleming)

30. The Emergence of Negligence Law: Donoghue v Stevenson The existence of the duty of care between the manufacturer and ultimate consumer The existence of the duty of care between the manufacturer and ultimate consumer ‘a manufacturer of products … owes a duty to the consumer to take reasonable care’ ‘a manufacturer of products … owes a duty to the consumer to take reasonable care’

31. The Sources of Law on Product Liability Common Law: Common Law: – – contract – – tort Statute Law – – Trade Practices Act 1974 (Cwth) – – State fair trading legislation, State Sale of Goods legislation – – Strict liability regime.

32. Common Law: Negligence Donoghue v Stevenson and the Common Law duty of manufacturers Donoghue v Stevenson and the Common Law duty of manufacturers The scope of the duty: The scope of the duty: –The extent of the duty: Junior Books v Veitchi (the duty extends beyond merely causing harm to safety or property) –Intermediate examination: Grant v. Aust. Knitting Mills –The range of defendants: Haseldine v. Daw

33. The Act of the Defendant Negligent design of product Negligent design of product –O’Dwyer v. Leo Buring [1966] WAR 67 Negligence in the manufacturing process: Negligence in the manufacturing process: –Grant v. Australian Knitting Mills Negligent Marketing of a Product Negligent Marketing of a Product –Adelaide Chemical & Fertilizer Co V. Carlyle Failure to warn of dangers or proper use Failure to warn of dangers or proper use Norton Aust. Pty Ltd V. Steets Ice Cream Pty Ltd

34. Statute Sale of Goods Act (1923) NSW implies into contracts for sale of goods certain warranties: Sale of Goods Act (1923) NSW implies into contracts for sale of goods certain warranties: –fitness for purpose –merchantable quality –cannot be excluded

35. Statute Trade Practices Act (Comm) Pt V Div 2A Trade Practices Act (Comm) Pt V Div 2A –S74B Allows a consumer or person acquiring title through or under consumer an action against manufacturer in respect of goods unsuitable for purpose of sale. –S74B Allows a consumer or person acquiring title through or under consumer an action against manufacturer in respect of goods unsuitable for purpose of sale. –S.74C : Action in respect of false description –S.74D: goods of unmerchantable quality –S.74E: goods not corresponding with sample –S.74K : No exclusion or modification of T.P.A

36. The TPA: The manufacturer Manufacturer: defined widely (S74A (3) & (4)) to include a corporation Manufacturer: defined widely (S74A (3) & (4)) to include a corporation –-allows its name or brand on goods –-holds itself out as manufacture –-is importer & manufacture has no Aust place of business

37. The TPA: The Consumer CONSUMER: person acquiring goods where; CONSUMER: person acquiring goods where; –-prices does not exceed the prescribed amount ($40,000) –OR –-where price was greater but goods were of a kind ordinarily acquired for personal domestic or household use.

38. The TPA: Remedies S75AE: Remedy for other persons who suffer consequential losses. S75AE: Remedy for other persons who suffer consequential losses. S75AF: Remedy for damage to personal, domestic or household goods: S75AF: Remedy for damage to personal, domestic or household goods: S75AG: Remedy for damage to land or buildings S75AG: Remedy for damage to land or buildings

39. The TPA: Defences Defences: S75AK Defences: S75AK Contrib. Neg: S75AN Contrib. Neg: S75AN 3 year time limit: S75AQ 3 year time limit: S75AQ

40. The TPA Part VA Pt VA T.P.A was enacted in 1992 and deals with the liability of manufacturers and importers of defective goods Pt VA T.P.A was enacted in 1992 and deals with the liability of manufacturers and importers of defective goods –S.75A: Applies to goods “if their safety is not such as person generally are entitled to expect” –S.75AD: A corporation supplying such goods is liable for damages to a person injured or killed

41. Fair Trading Act (1987) (NSW)

42. The Action: TPA or Tort Under the TPA the Plaintiff does not prove: Under the TPA the Plaintiff does not prove: –-duty of care –-negligence P should where possible plead 2 causes of action: P should where possible plead 2 causes of action: –-in tort –-under TPA

43. Abnormal Plaintiffs and Particularly Sensitive Plaintiffs To be liable, P must show that she/he was foreseeable. In general the abnormal P is not foreseeable To be liable, P must show that she/he was foreseeable. In general the abnormal P is not foreseeable There is a distinction to be drown between the abnormal Plaintiff and the particularly sensitive Plaintiff There is a distinction to be drown between the abnormal Plaintiff and the particularly sensitive Plaintiff

44. Abnormal Plaintiffs In general where D is negligent, D takes P as he /she finds P. Any unusual condition that aggravates the damage cannot be used by D as a defence In general where D is negligent, D takes P as he /she finds P. Any unusual condition that aggravates the damage cannot be used by D as a defence –Haley v. London Electricity Bd. A blind P held not to be abnormal: D “ought to anticipate the presence of such person within the scope and hazard of their operations”

45. Particularly Sensitive Plaintiff Where P suffers damage because of a particular sensitivity in circumstances where D’s conduct is not considered a breach, P cannot claim Where P suffers damage because of a particular sensitivity in circumstances where D’s conduct is not considered a breach, P cannot claim Levi. V Colgate Palmolive Levi. V Colgate Palmolive –“the bath salts supplied to P were innocuous to normal persons… the skin irritation which she suffered…was attributable exclusively to hypersensitiveness” –“the bath salts supplied to P were innocuous to normal persons… the skin irritation which she suffered…was attributable exclusively to hypersensitiveness”

46. The Unborn Child In general, a duty of care may be owed to P before birth In general, a duty of care may be owed to P before birth –Watt v. Rama: “the possibility of injury on birth to the child was… reasonably foreseeable…On the birth the relationship crystallised and out of it arose a duty on the D…” –X v. Pal: Duty to a child not conceived at the time of the negligent act –Lynch v. Lynch:Mother liable in neg to her own foetus injured as result of mother’s neg driving.

47. Wrongful Birth Claims Claims by parents in respect of the birth of a child who would not have been born but for the D’s negligence. Claims by parents in respect of the birth of a child who would not have been born but for the D’s negligence. –Vievers v Connolly (1995) 2 Qd R 325 (Mother of disabled child born bec. Pl lost opportunity to lawfully terminate pregnancy. Damages included costs for past & future care of child for 30 years.) – CES v Superclinics (1995-6) 38 NSWLR 47 Mother lost opportunity to terminate pregnancy as a result of D’s neg failure to diagnose pregnancy. NSW Ct of Appeal held claim maintainable but damages not to include costs of raising the chills as adoption was an option. –Melchior v Cattanach [2001] QCA 246 Mother of healthy child after failed sterilization procedure. Qld CT Appeal held damages shld include reasonable costs of raising the child. High Ct agreed on appeal

48. Wrongful Life Claims Claim by child born as a result of negligent treatment by De of child’s parent. Claim by child born as a result of negligent treatment by De of child’s parent. Bannerman v Mills (1991) ATR 81-079. Summary dismissal of claim by child born with disabilities as result of mother having rubella whilst pregnant. Tort of wrongful life unknown to common law Bannerman v Mills (1991) ATR 81-079. Summary dismissal of claim by child born with disabilities as result of mother having rubella whilst pregnant. Tort of wrongful life unknown to common law

49. Wrongful Life Claims Edwards v Blomeley; Harriton v Stevens; Waller v James (2002 ) NSW Supreme Court, Studdert J. Edwards v Blomeley; Harriton v Stevens; Waller v James (2002 ) NSW Supreme Court, Studdert J.   No duty of care to prevent birth   Policy reasons - –1. Sanctity & value of human life –2. impact of such claim on self-esteem of disabled persons –3. exposure to liability of mother who continued with pregnancy – 4. Plaintiffs’ damage not recognizable at law - would involve comparison of value of disabled life with value of non- existence – 5. Impossibility of assessment of damages in money terms - taking non-existence as a point of comparison. – 5. Impossibility of assessment of damages in money terms - taking non-existence as a point of comparison.

50. CLA Part 11 s71 In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for: (a) the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or (b) any loss of earnings by the claimant while the claimant rears or maintains the child. (2) Subsection (1) (a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability. In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for: (a) the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or (b) any loss of earnings by the claimant while the claimant rears or maintains the child. (2) Subsection (1) (a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability.court damagescourt damages

51. Defective Premises In general the occupier of premises owes a duty of care to persons who come on to the premises In general the occupier of premises owes a duty of care to persons who come on to the premises While the notion of occupier's liability may have developed initially as a separate category of tort law, it now considered under the general principles of negligence While the notion of occupier's liability may have developed initially as a separate category of tort law, it now considered under the general principles of negligence –Zaluzna v Australian Safeway Stores

52. Occupiers’ Liability What are Premises? What are Premises? –-Land and fixtures –-but Cts have used wide interpretations including moveable structures eg: –scaffolding (London Graving Dock v. Horton [1951] AC 737 –Ships and gangways eg. Swinton v. China Mutual Steam Navigation Co Ltd (1951) 83 CLR 553

53. Occupiers’ Liability Who is an occupier – control Who is an occupier – control –Wheat v. Lacon [1966] AC 522 –Kevan v. Commissioner for Railways [1972] 2 NSWLR 710