CLA: necessary condition & separate and sufficient causes exception

Nominal Defendant v Bacon [2014] NSWCA 275


[This Headnote is not to be read as part of the judgment]

This judgment relates to an appeal from a decision of the District Court finding the Nominal Defendant liable for compensation to Ms Bacon for an injury suffered in a motor vehicle accident near Breeza.

Ms Bacon’s car collided with an unregistered truck as both were travelling in opposite directions on an unsealed country road in dusty conditions. The District Court held the Nominal Defendant liable for damages but reduced them by 50% for contributory negligence.

The Nominal Defendant appeals from the trial Judge’s finding that the truck driver’s action was causative of the accident and his Honour’s assessment of contributory negligence.

Held dismissing the appeal:

(1) by McColl and Ward JJA (at [26] and [91], respectively) (Macfarlan JA agreeing with Ward JA at [3]) that there was no error in his Honour’s finding that the truck driver’s negligence was a necessary condition of the accident.

(2) by Ward JA (at [102]) (McColl and Macfarlan JJA agreeing at [3] and [27], respectively) that the there was no error in law in the trial Judge’s discretionary decision as to the assessment of contributory negligence.

(3) (obiter) by Macfarlan JA (at [28], [29] & [43]) even if the truck driver’s actions were not a necessary condition of the harm, had Ms Bacon sought to justify the result at first instance by reference to s 5D(2) of the Civil Liability Act 2002 (NSW), it is likely that this section would have been applicable. Operation of s 5D Civil Liability Act where more than one sufficient condition of plaintiff’s injury discussed.



Section 5D provides:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(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.”


McColl JA at [1]; Macfarlan JA at [27]; Ward JA at [43]:

Macfarlan JA 31 At common law, “when separate and independent acts of negligence on the part of two or more persons … directly contributed to cause injury and damage to another, the person injured [could] recover damages from any one of the wrongdoers, or from all of them” (Grant v Sun Shipping Co Ltd [1948] AC 549 at 563; Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408 at 429 per McHugh J). Thus “each sufficient condition [was] treated as an independent cause of the plaintiff’s injury” (Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [18] and [28]; March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 at 534). The “but for” test did not adequately deal with such cases of separate and sufficient causes (March v Stramare at 516 and 523) and was not therefore applied at common law in them.

33 Satisfaction of subsection (1) requires the negligence of the defendant to have been a “necessary condition of the occurrence of the harm”. That is, but for that negligence the plaintiff’s injuries would not have been suffered. As I have said above, on the hypothesis with which I am presently dealing, that test was not satisfied in the present case.

34 However in my view, subsection (2) was applicable to Ms Bacon’s claim.

35 The Ipp Report (“Review of the Law of Negligence: Final Report September 2002″), upon which the late 2002 amendments to the Civil Liability Act introducing s 5D were based, said in [7.26]:

“Although there are some cases with which the ‘but for’ test does not deal satisfactorily (involving ‘causal over-determination’ of harm – that is, harm that is attributable to more than one sufficient condition), the law has devised rules for resolving such cases in ways that are generally considered to be satisfactory and fair. We therefore make no recommendations on this aspect of the law”.

36 As I read this passage, the authors of the Report assumed that what became s 5D of the Civil Liability Act would not prevent the continued application of the common law rules for dealing with cases where the plaintiff’s injury resulted from more than one sufficient condition. These are the rules to which I have referred in [31] above and which the authors of the Ipp Report thought to be satisfactory and fair. Such cases are exceptional cases of the type contemplated by the opening words of s 5D(2) and the application of the common law would result in a determination of those cases, using the next words in s 5D(2), “in accordance with established principles”.

37 Moreover, the consideration required by the remaining words of s 5D(2) in my view leads to the conclusion that “responsibility for the harm should be imposed on the negligent party”. In this connection, there is no reason to depart from the Ipp Report’s view that the relevant common law principles are “satisfactory and fair”. Imposition of liability on each of the negligent parties is particularly appropriate where the parties in question are the plaintiff and defendant, and their respective responsibilities for the accident can be reflected in a reduction of the plaintiff’s award to account for his or her contributory negligence.

38 In his Second Reading Speech in relation to the Civil Liability Amendment (Personal Responsibility) Bill 2002, the relevant Minister said in relation to what was to become s 5D:

“The bill will also deal with causation. Its intention is to guide the courts as they apply a commonsense approach. The rules for factual causation are set out, including the very limited exception to the ‘but for’ test. This exception was developed by the court for those rare cases, often in the dust diseases context, where there are particular evidentiary gaps. By including this exception in the bill it is not intended that the bill extend the common law in any way. Rather, it is to focus the courts on the fact that they should tread very carefully when considering a departure from the but for test.

It is only for the most limited and exceptional circumstances where any departure can be justified”.

39 This passage refers only to a single exception to the “but for” test, being one that is not presently applicable as it relates to cases where there are particular evidentiary gaps. The speech thus overlooks the exception at common law, referred to in the Ipp Report, where harm is attributable to more than one sufficient condition. However, as the High Court noted in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [55], the exceptional cases contemplated by s 5D(2) are undefined. Whilst obedience must be paid to its express limitation to “exceptional” cases and to its requirement for determinations in accordance with “established principles”, the subsection’s terms do not justify its limitation to the single instance referred to in the Second Reading Speech, particularly when the further (and presently relevant) exception to the “but for” test was referred to in the Ipp Report to which the Second Reading Speech referred approvingly.

40 Nor is my approach to s 5D(2) inconsistent with binding authority.

41 In Strong v Woolworths, the majority at [18] noted that the “but for” test stated in s 5D(1) “produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff’s harm”, and said at [28]:

“As earlier noted, the limitations of the ‘but for’ analysis of factual causation include cases in which there is more than one sufficient condition for the occurrence of the plaintiff’s injury. At common law, each sufficient condition may be treated as an independent cause of the plaintiff’s injury. The Ipp Report noted the conceptual difficulty of accommodating cases of this description within a ‘but for’ analysis, but made no recommendation because the common law rules for resolving cases of ‘causal over-determination’ were generally considered to be satisfactory and fair. How such cases are accommodated under the scheme of s 5D does not call for present consideration” (citations omitted).

42 Nor did the High Court’s judgment in Adeels Palace v Moubarak embark on a consideration of s 5D(2). Whilst the Court did understandably say that the statute should be applied rather than the High Court’s approach to causation in March v Stramare, it was referring to the “common sense” approach to causation discussed in the latter case and contrasting it to s 5D(1)’s treatment of “factual causation and scope of liability as separate and distinct issues” ([43] and [44]).


David Cormack – Brisbane Barrister & Mediator


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