The 1 July 2010 amendments to the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) are now being felt with claims making their way through. Sections 305D and 305E replicate sections 11 (breach of duty of care) and 12 (onus of proof) of the Civil Liability Act 2003 (CLA). I refer to the section 5D cases in NSW (equivalent of s.11) in the context of causation in particular.

CLA – “But for” test & its application

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009)

Causation – slipping on a greasy chip

Woolworths Limited v Strong & Anor [2010] NSWCA 282

See also:

Zanner v Zanner [2010] NSWCA 343:

11.

The requirement to follow s 5D is clear. What its statutory content is and the extent of any continuity with developing common law concepts awaits judicial elucidation. In Woolworths Limited v Strong [2010] NSWCA 282 at [48] Campbell JA (with whom Handley AJA and Harrison J agreed) said that s 5D(1) excluded notions of “material contribution” and increase in risk. To the extent that his Honour was referring only to factors or circumstances from which a negative “but for” answer was given, so much is clear. However, the notion of cause at common law can incorporate “materially contributed to” in a way which would satisfy the “but for” test. Some factors which are only contributing factors can give a positive “but for” answer. Both the driver who goes through the red light and the driver with whom he collides who is not paying attention contribute to the accident. If either episode of neglect had not occurred the accident would not have occurred. The facts of Henville v Walker [2001] HCA 52; 206 CLR 459 provide another example. However, material contributions that have been taken to be causes in the past (notwithstanding failure to pass the ”but for” test) such as in Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] UKHL 1; [1956] AC 613 are taken up by s 5D(2) which, though referring to “an exceptional case”, is to be assessed “in accordance with established principle”.

12.

There is no suggestion that the application of common sense is in any way foreign to the task in ss 5D(1)(b), (2) and (4). Indeed it would be an odd interpretation of a law of the Parliament that excluded such a consideration from an evaluation of this kind against the background of the common law and, in particular, in the light of the contents of the Ipp Report.

This case does not demand any great agonising over the application of ss 5D(1)(b) and (4). All relevant considerations that inform the content of the appropriate scope of the negligent person’s liability and responsibility point to a positive conclusion as to causation and liability here. Injury to the mother was entirely foreseeable should negligence occur. The scope of the risk of harm protected by the duty and created by the breach included injury to the mother. The injury was not coincidental to the breach. It was the direct and immediate consequence of the negligence. The son in the car ran over his mother. The content of the duty and the attenuated standard of care were directed to the exercise of care to avoid injury to the mother in the very manner that occurred. There was no intervening act of a third party or of an abnormal event. The only other causal factor was the negligence of the person (the mother) to whom the duty was owed. There is no reason why the appropriate apportionment of respective responsibility is not best allocated through contributory negligence. Common sense would attribute the mother’s injury to the negligence of her son, as well as to her own negligence in putting herself in that position.

Jovanovski v Billbergia Pty Ltd [2010] NSWSC 211

79.

As in Adeels, there was no evidence in the present case to show that a warning coupled with a threat to the workforce would have prevented the grease smearing and the injury to Mr Jovanovski. All that is available is an inference that it might have deterred the perpetrator but it is equally able to be inferred that it would have caused the perpetrator to act with greater care not to be detected if, as seems likely, Mr Jovanovski was the clearly intended victim – there was no evidence of grease on other trucks.

82.

More significantly, Adeels makes clear that where the issue of causation is governed by s 5D breaches such as those that I have found, cannot be regarded as a necessary condition of the occurrence of the harm for the purposes of s 5D(1). The matter can be put no higher than that the appropriate warning might have deterred or prevented the occurrence which caused the injury to the Plaintiff.

Brisbane Barrister – David Cormack

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