98 Emmett JA at ; Gleeson JA at ; Tobias AJA at 
203 Referring to Indigo Mist Pty Ltd v Palmer  NSWCA 239, the primary judge correctly stated the test for factual causation: the appellant must prove, on the balance of probabilities, that the occupier’s negligence was a necessary condition of her harm, although it is not necessary to prove that the taking of such action would have prevented her fall. It was sufficient if she proved that the taking of a particular action would have minimised the risk of such a fall, such that the failure to do so “was a necessary condition of the occurrence of harm” (Judgment at 45). See Kuhl at  (French CJ and Gummow J) and  (Heydon, Crennan and Bell JJ); Indigo Mist Pty Ltd v Palmer at - (Hoeben JA; Beazley and Macfarlan JJA agreeing). 204 The primary found that causation had not been made out, stating (Judgment at 45):
“The highest that her case rises, is the rather speculative contention that aisle lighting (or a different nosing) might have attracted the plaintiff’s attention to the existence of the step. That possibility never rises above speculation, which is no substitute for evidence and inference.”205 Her Honour also correctly observed (Judgment at 46) that the possibility that doing something differently might have deterred or prevented the person suffering the harm, or taking certain steps might have made the occurrence less likely, did not satisfy the test of causation in s 5D(1) of the CL Act: Adeels Palace Pty Ltd v Moubarak  HCA 48; 239 CLR 420 at . 206 The issue before the primary judge and on appeal is whether the respondent’s (assumed) breach of duty was a necessary condition of the occurrence of the appellant’s injuries. The critical issue on causation, assuming a relevant breach of duty had been established, was whether the suggested precautions would have drawn the appellant’s attention to the step, thus either preventing or minimising the risk of harm. It is sufficient that the suggested precaution, on the balance of probabilities, would have minimised the risk of injury: Lesandu Blacktown Pty Ltd v Gonzalez  NSWCA 8 at - per Basten JA (Meagher JA and Davies J agreeing); Coregas Pty Ltd v Penfold Australia Pty Ltd  NSWCA 350 at  per Hoeben JA (Meagher JA and Bergin CJ in Eq agreeing).
David Cormack – Brisbane Barrister.