I refer you to the earlier post and headnote.
Section 5D(2) of the NSW provision is identical to the analogous Queensland provisions under s.11(2) Civil Liability Act 2003 and s.305D(2) of the Workers’ Compensation and Rehabilitation Act 2003.
“(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.”
The appellant/plaintiff was a police officer who claimed a psychiatric injury. The plaintiff alleged there were two occasions when the Commissioner ought to have taken preventative action by providing pastoral care or support, and or recommending him to a private psychiatrist. The appellant argued the facts and causation fell within the exception in subsection 2.
The alleged breaches were found not to have caused his psychiatric injury because the cause of his injury was held to be two decades of service for which there was no negligence alleged. The court found that the case was not exceptional.
Emmett AJA delivered the judgment, Macfarlane and Gleeson JJA concurred:
Relevant Legal Principles
63. Both parties accept that s 5D of the Civil Liability Act applies in the circumstances of the case. Section 5D was introduced by the Review of the Law of Negligence Report (2002) conducted under the chairmanship of the Hon David Ipp (the Ipp Report). The Ipp Report referred to a “two pronged’’ test of causation, and postulated that causation has two aspects. The first, the factual aspect, is concerned with whether the negligent conduct in question played a part in bringing about the harm that is the subject of the claim, in the sense that it was a necessary condition of the occurrence of the harm. Answering that question positively is not enough to justify the imposition of liability for negligence, because every event has an infinite number of necessary conditions. The Ipp Report observed that the ultimate question to be answered in relation to a negligence claim is not the factual one, of which the allegedly negligent conduct played a part in bringing about the harm, but rather a normative one, about whether the defendant ought to be held liable to pay damages for that harm. The second aspect is whether the defendant should be held liable for any of the harmful consequences of an act of negligence. That aspect was said to concern the appropriate scope of liability for the consequence of negligence.
64. Thus, s 5D(1) relevantly provides that a determination that negligence caused a particular harm comprises two elements as follows:
1.That the negligence was a necessary condition of the occurrence of the harm, described as factual causation;
2.That it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused, described as scope of liability.
65. The Ipp Report also referred to the problem of what has been described as “evidentiary gaps”. Two types of situation were described where an evidentiary gap may exist. One involves harm that is brought about by the cumulative operation of two or more factors, but which is indivisible in the sense that it is not possible to determine the relative contribution of the various factors to the total harm suffered. An illustration of the second type of situation where an evidentiary gap may exist is where a person contracted mesothelioma as a result of excessive periods of exposure to asbestos while working for different employers. The evidence may not justify a conclusion in relation to any particular employer that, but for the negligence of that employer, the plaintiff would not have contracted the disease.
66. The Ipp Report referred to the “material contribution to harm” and the “material contribution to risk” principles, both of which were said to allow negligent conduct to be treated as a factual cause of harm even though it cannot be proved, on the balance of probabilities, that there was in fact a causal link between the conduct and the harm. That is to say, in some circumstances, it may be appropriate to bridge such an evidentiary gap by allowing proof that negligent conduct materially contributed to harm, or the risk of harm, in order to satisfy the requirement of proof of factual causation. The Ipp Report said that the major difficulty with those principles is to define those cases in which the normal requirements of proof of causation should be relaxed. That was characterised as a normative issue that depends, ultimately, on a value judgment about how the costs of injury and death should be allocated.
67. Those observations resulted in s 5D(2) of the Civil Liability Act, which relevantly provides that, 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 required to consider, amongst other relevant things, whether or not, and why, responsibility for the harm should be imposed on the negligent party. Mr Carangelo places some reliance on s 5D(2).
68. An action in negligence has been described as being based upon the union of negligence and the injuries caused thereby, which will as a rule, involve and have been accompanied by specific damages. An action in negligence is sufficiently flexible to enable courts to extend it to cover situations where damage was suffered in circumstances that call for a remedy. However, the requirement for damage cannot be dispensed with. Breach of duty of care without proven loss or harm will not suffice. The common law requires proof by the person seeking compensation that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. In that context “more probable” means no more than that, upon the balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood. It does not require certainty (see Tabet v Gett  HCA 12; 240 CLR 537 at 577 – 578).
69. The “but for” test is regarded as having an important role in the resolution of causation, more as a negative criterion than as a comprehensive test. Once causation is proved to the general standard, the common law treats what is shown to have occurred as certain. The purpose of proof at law is to apportion legal responsibility, which requires the courts, by judgment, to reduce to legal certainty questions to which no other conclusive answer can be given. The result of such an approach is that, when loss or damage is proved to have been caused by a defendant’s act or omission, a plaintiff becomes liable for the entire loss. (Tabet v Gett at 577 – 578).
70. When physical or mental injury or harm is proved, the question is whether it was caused by a relevant negligent act or omission. A claimant will fail if the evidence does not establish the link between the act or omission of the defendant and the damage or harm suffered. It must be able to be said that, but for the act or omission, the claimant would not have suffered the injury or harm (Tabet v Gett at ).
71. Causation in tort is not established merely because the allegedly tortious act or omission increased a risk of injury. The risk of an occurrence and its cause are quite different things. However, the relationship between risk and causation must be considered. Ordinarily, risk refers to a challenge or danger, or the chance or hazard of loss. The existence of an association or a positive statistical correlation between the occurrence of one event, and the subsequent occurrence of another, may be expressed as a possibility which may be no greater than a real chance that, if the first event occurs, the second event will also occur. The mere existence of such an association or correlation does not justify a statement relevant to factual causation in law, that the first event creates or gives rise to or increases the probability that the second event will occur. Such a statement contains an assumption that, if the second event occurs, it will have some causal connection to the first. However, if the association between the two events is shown to have a causal explanation, then the conclusion may be open, if the second event should occur, that the first event has been at least a contributing cause. An inference of causal connection may be reached on the balance of probabilities after the event, notwithstanding that the statistical correlation between the first event and the second event indicated, prospectively, no more than a mere possibility or a real chance that the second event would occur, given the first event. (Amaca Pty Limited v Booth  HCA 53; 246 CLR 36 at  – ).
72. The “but for” criterion of causation can be troublesome in different situations in which multiple acts or events lead to injury of a plaintiff. In such cases, what might be unclear is the extent to which one of those conjunctive causal factors contributes to that state of affairs. It is sufficient for the plaintiff to prove that the negligence of the defendant caused or materially contributed to the injury. For example, where a plaintiff is exposed to quantities of silicon dust produced by various activities, one of which is at the plaintiff’s work place, and the other activities are conducted without any breach of duty, the question is not what the most probable source of the plaintiff’s disease was. Rather, it is whether dust from the employer’s negligent conduct was a cause of the disease, when the medical evidence was that disease can be caused by gradual accumulation of silica particles inhaled over a period of years (Amaca v Booth at ).
73. Section 5D(2) of the Civil Liability Act makes a special provision for cases where causation cannot be established on a “but for” analysis. The provision permits a finding of causation in “exceptional cases”, notwithstanding that the defendant’s negligence cannot be established as a necessary condition of the occurrence of the harm. Negligent conduct that materially contributes to a plaintiff’s harm, but which cannot be shown to be a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation, subject to the normative considerations to which s 5D(2) requires that attention be directed.
74. The assumption made by the Ipp Report is that some cases will not meet the test of factual causation under s 5D(1). Whether that is so will depend on the evidence in the particular case. In some cases, although the relative contribution of two more factors to the particular harm can be determined, it may be that each factor is part of a set of conditions necessary to the occurrence of that harm. The limitations of the “but for” analysis of factual causation include cases in which there is more than one sufficient condition to the occurrence of the plaintiff’s injuries. Under the common law, each sufficient condition may be treated as an independent cause of the injuries. Causation is to be determined by reference to the statutory test in s 5D (Strong v Woolworths Ltd  HCA 5; 246 CLR 182 at  – ).
- The evidence relied on by Mr Carangelo does not support a finding that, on the balance of probabilities, forewarning of the PIC Inquiry and offering of psychiatric support in connection with it would have had any relevant bearing on the Psychiatric Injury. As the State contends, the harm suffered by Mr Carangelo was caused by his two decades of service in the Police Force. There was no error in the conclusion reached by the primary judge in that regard.
- For the reasons indicated above, the reliance by Mr Carangelo on s 5D(2) is misplaced. This is not an exceptional case, such that responsibility for the harm suffered by Mr Carangelo should be imposed upon the State as vicariously liable for the conduct of the Commissioner.
- The State contends, for the reasons indicated above, that the Commissioner had no knowledge of Mr Carangelo’s psychiatric state in 1999. It would follow that it would not have been apparent to the Commissioner in 2005 and thereafter that there was a not insignificant risk that Mr Carangelo might suffer psychiatric harm in facing the PIC Inquiry, such as to found a duty to take care in the way found by the primary judge. In light of the conclusions reached above, namely, that Mr Carangelo has failed to demonstrate any error on the part of the primary judge in finding that there was no causal connection between such a breach of duty and the Psychiatric Injury, it is not necessary to deal with the contention by the State that there was no breach of duty on the part of the Commissioner in connection with the PIC Inquiry.
David Cormack – Brisbane Barrister & Mediator