I refer you to the High Court’s judgment summary.
In allowing the appeal the High Court held as follows regarding causation:
- Having found that Mr McDermott had not established that Robinson breached its duty of care to him, the judge did not consider it necessary to deal with the question of causation. Equally, having concluded that the judge was not in error in holding that there was no breach of duty, it is, strictly speaking, unnecessary for this Court to consider causation. In deference, however, to the substantial arguments which were advanced on the issue, it is appropriate to say something brief about it.
- As has been seen, the judge’s conclusion that Robinson was not shown to have breached its duty of care to Mr McDermott depended in part on his Honour’s finding that it was quite unlikely that, if a torque stripe were applied, it was applied to a dirty or greasy surface in a manner which permitted the horizontal section of the stripe to rotate with the bolt and thereby convey the impression that Bolt 4 was not rotating. But it should be understood that even if that were accepted as a realistic possibility, Mr McDermott would still have failed to establish causation.
- The majority of the Court of Appeal concluded that, if the application of a torque stripe to a dirty or greasy surface were a realistic possibility, there would have been four possibilities, namely:
(1) that a torque stripe was not applied when the bolt was incorrectly assembled;
(2) that a torque stripe was correctly applied and misaligned so as to provide an adequate indication of bolt rotation;
(3) that a torque stripe was incorrectly applied, so as not to adhere to both the bolt as well as the fixed components, so that the torque stripe could move with the rotating bolt and not crack; and
(4) that a torque stripe was correctly applied but due to ageing, fading or chipping had to some degree deteriorated.
The majority did not conclude, however, and it cannot be inferred from the evidence, that possibility (3) was any more likely to have occurred than any of the other possibilities. At best from Mr McDermott’s point of view, possibility (3) might be viewed as no less likely to have occurred than any of the others; and, for the reasons given by the judge, and reiterated by Holmes JA in the Court of Appeal, the Manual was adequate to deal with each of the other possibilities.
- On the assumption that it was a realistic possibility that a torque stripe was incomplete or applied to a dirty or greasy surface in a manner that permitted the horizontal section of the stripe to rotate with the bolt and thereby create a deceptive appearance of bolt security, it might have been concluded that Robinson owed a duty of care to take reasonable care to avoid that risk eventuating. It might also have been considered that Robinson breached its duty of care by failing to include a direction in the Manual that flex plate bolts be checked with a torque wrench at each 100 hourly inspection. But, since the Manual was adequate to cover possibilities (1), (2) and (4), and it was not established that possibility (3) was any more likely to have occurred than any of the other possibilities, it could not be concluded that the breach of duty in failing to provide for possibility (3) was causative of the crash.
- Counsel for Mr McDermott argued to the contrary that, if there had been a requirement in the Manual to verify the torque of the flex plate bolts with a torque wrench during 100 hourly inspections, it was probable that that requirement would have been complied with. Thus, regardless of which of possibilities (1) to (4) in fact occurred, it was apparent that it was Robinson’s breach of duty in failing to require that the bolts be re-torqued which caused the crash.
- That argument should be rejected. Essentially, it amounts to saying that, if a manufacturer recommends a simple procedure adequate for detection of a fault that in fact occurs, but does not recommend a more sophisticated procedure necessary to detect not only the fault that in fact occurs but also another fault that was a foreseeable possibility but that did not in fact occur, and, as a result of the user failing to adhere to the recommended procedure, the fault that in fact occurs is not detected, the manufacturer should nonetheless be held liable to the user for the consequences of the user’s failure to discover the fault that in fact occurs. The logic of that is hardly self-evident.
- Conceivably, if a manufacturer recommended the more sophisticated procedure, the user might be more likely to follow the sophisticated procedure than the recommended procedure, possibly because the recommendation of the more sophisticated procedure may heighten the user’s appreciation of the potential risks of failing to do what was recommended. On that basis, it might be conjectured that, because of the manufacturer’s failure to recommend the more sophisticated procedure, the user would be deprived of a chance of avoiding the damage that the recommendation of the more sophisticated procedure may have avoided. But, in this case, there are at least two reasons why an argument of that kind is bound to fail.
- First, at the level of principle, this Court has set its face against recovery of loss of a chance in the law of negligence relating to personal injuries. Although proof of causation may sometimes entail the robust, pragmatic drawing of inferences, especially where there are a number of possible causes and there is difficulty in ascertaining which of them was the cause of damage suffered, proof of causation still requires proof on the balance of probabilities that the alleged breach of duty was the cause of the damage suffered.
- Secondly, at a factual level, such evidence as there was on the matter pointed against the likelihood that Mr Fisher and Mr Bray would have been any more assiduous in adhering to a recommendation that they check the torque of the bolts with a torque wrench than they were in examining the torque stripes in accordance with the Manual. Although each of them gave evidence that he was familiar with the Manual, and that he followed it, both of them said that they did so without necessarily looking at the Manual and Mr Fisher said that he did not make use of the check list. Neither of them said that he would have been any more likely to adhere to a recommendation that he check the bolts with a torque wrench than he was likely to conduct a thorough examination of the torque stripes for indications of possible bolt rotation.
David Cormack – Brisbane Barrister & Mediator