CLA: causation and the appropriate test

Lucantonio v Stichter [2014] NSWCA 5

 

McColl JA at [1], Basten JA at [96], Barrett JA at [145]
79 In order to establish that any breach of duty on the respondent’s part caused the appellant harm, the appellant had to establish that that negligence was a necessary condition of the occurrence of that harm, an exercise the Act labels “factual causation”: s 5D(1)(a),Civil Liability Act 2002. That required the appellant establishing that the respondent’s negligence was a condition that must be present for the occurrence of the harm: Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 (at [18], [20]) per French CJ, Gummow, Crennan and Bell JJ; (at [44]) per Heydon J.

80 Such determination “is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E” (Wallace v Kam [2013] HCA 19; (2013) 87 ALJR 648 (at [14])) and is approached by applying common sense to those facts: Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 (at [43]; [56]) per French CJ, Hayne and Kiefel JJ. It “involves nothing more or less than the application of a ‘but for’ test of causation”: Wallace v Kam (at [16]); Adeels Palace Pty Ltd v Mourbarak [2009] HCA 48; (2009) 239 CLR 420 (at [45], [55]). “Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred”: Strong v Woolworths Ltd (at [32]) per French CJ, Gummow, Crennan and Bell JJ.

81 The inquiry into causation is retrospective, seeking to identify what happened and why: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [124]) per Hayne J; Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 (at [28]) per Basten JA (Davies J agreeing). It focuses on the particular conduct or omission which is found to constitute the defendant’s breach of duty: Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 (at 419) per Phillips JA (Ormiston JA generally agreeing).

82 The question whether the appellant would have completed the purchase for the contract price had the respondent provided timely advice on or about 17 January 2002 has to be determined subjectively in light of all the relevant circumstances: s 5D(3)(a), Civil Liability Act; Wallace v Kam (at [17]).

 

Reproduced with permission of Robert Sheldon SC

 

Brisbane Barrister – David Cormack

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