Queensland Bar Association
Sections 11 and 12 of the Civil Liability Act 2003 - Causation
Kevin Holyoak
Sir Harry Gibbs Chambers
Commencement and Application
•
•
•
Sections 11 and 12 commenced on 2 December 2002:
subsection 2(1) of the CLA
The sections apply to “any civil claim for damages for
harm”: subsection 4(1). Schedule 2 to the CLA defines
“harm” to mean “harm of any kind” and it is not limited
to personal injury. It includes damage to property and
economic loss
The sections apply in relation to a “breach of duty”.
Schedule 2 of the CLA defines “duty” as one “in tort”,
or “under a contract that is co-extensive with a duty of
care in tort” or “another duty under statute or otherwise
that is concurrent with” such a tortious or contractual
duty.
2
•
The term “duty of care” is defined in schedule 2 of the
CLA as “a duty to take reasonable care and exercise
reasonable skill (or both duties)”. Consequently, the
sections will not apply to strict or absolute promises.
Further, this is subject to the provisions of any contract
between the parties: subsection 7(3) of the CLA
The CLA regulation of causation therefore has a tortious
focus. In any event, there is authority in Queensland
that “in reality causation in a commercial contractual
context seems no different from causation in
negligence” (Coley v. Nominal Defendant [2004] 1 Qd
R 239 at paragraph [16] per McMurdo P, with whom
Jerrard JA agreed)
3
Section 11 of the CLA
•
•
Subsection 11(1) divides the causal inquiry
into two elements:(a) factual causation;
(b) scope of liability
Subsections 11(2) and 11(3) further regulate
“factual causation”. Subsection 11(4)
further regulates “scope of liability”
4
•
•
Section 11 adopts recommendation 29 of the “Ipp” report,
Review of the law of negligence report, 2 October 2002 –
paragraph [7.25]-[7.51]. The report accepted the existing
law (for example as listed in Wallaby Grip (BAE) v.
Macleay Area Health Service (1998) 17 NSWCCR 355;
BC9806780) but opined there ought be established in a
statutory template a suitable framework to resolve
individual cases and to preclude a Plaintiff from giving
evidence as to what, hypothetically, would have been done
had the duty of care been discharged. This was to
counteract “hindsight bias” (Ipp report [7.40])
Section 11 regulates existing and developing law and is not
a code: subsection 7(5) of the CLA.
5
Common law principles
•
Subsection 11(1) provides a bifarcal test. The High
Court authorities held that the conception of
“causation” is not susceptible of reduction to a
satisfactory formula (per Dixon CJ, Fullagher and Kitto
JJ in Fitzgerald v. Penn (1954) 91 CLR 268 at 277,
adopted by Mason CJ, (with whom Gaudron J agreed)
in March v. E & M H Stramere Pty Ltd (1991) 171 CLR
506 at 515) and that there is only one compound
enquiry with the scope of liability or normative enquiry
also playing a role in the assessment of fact (Travel
Compensation Fund v. Tambree (2005) 224 CLR 627 at
[81] per Callinan J)
6
•
•
Section 11 is an endeavour to reduce causation to a
formula, adopting the twin divisional enquiry favoured
in some intermediate appellate Court authorities (see
for example Mahoney JA in Barnes v. Hay (1988) 12
NSWLR 337, 353; Petrou v. Hatigeorgiou (1991) Aust
Torts Reports 81-071, at 68,566; Ruddock v. Taylor
(2003) 58 NSWLR 269 at [85]-[89] – overturned in the
High Court but on different grounds; cf Lisle v. Brice
[2002] 2 Qd R 168 at paragraphs [24]-[29])
Attempts have been made to list the common law
principles (Wallaby Grip (BAE) v. Macleay Area Health
Service (infra); Tabet v. Mansour [2007] NSWSC 36)
7
Factual causation
•
•
The Plaintiff must establish, on the balance of
probabilities, that the Defendant’s breach
caused, or materially contributed to, the harm
(Bonnington Castings Ltd v. Wardlaw [1956]
AC 610)
Causation as a question of fact must be
determined by applying common sense to the
facts of each particular case (March v. E & M H
Stramere at 515). Foreseeability is not a test of
causation (Chapman v. Hearse (1961) 106 CLR
112)
8
•
There is a positive aspect and a negative aspect to
causation (for example, see the treatment of the
question of causation by Jerrard JA, with whom the
other members of the Court agreed, in Calvert v. Mayne
Nickless Ltd (No. 1) [2006] 1 Qd R 106 at [90]-[99])
• The positive aspect requires there to be evidence
from which it may be fairly inferred, as a
probability, that the accident resulted from some
want of care on the part of the Defendant (Davis v.
Bunn (1936) 56 CLR 246, 255)
9
•
•
The negative aspect requires consideration of
whether the step which ought to have been taken
would have made a difference and the extent to
which it would have made a difference (for example
Greg v. Scott [2005] 2 AC 176 at 203 at [106]) “it is
axiomatic that the wrongdoer is not liable for any
loss, injury or damage that would have happened
anyway”). This is the most appropriate use of the
“but for” test (March v. E & M H Stramere Pty Ltd
(infra))
A contribution will be material if it is shown on the
evidence not to be negligible (Western Australia v.
Watson [1990] WAR 248)
10
•
Establishing a mere possibility that a matter has
contributed, is not a material contribution to the harm
(Seltsam Pty Ltd v. McGuinness (2000) 49 NSWLR 262
at 280 [118], [119] and [153]; see also Forbes v. Selleys
Pty Ltd [2004] NSWCA 149 where the Court was not
persuaded that the possibility contended for had been
established; Kay v. Aryshire & Aaron Health Board
[1987] 2 All ER 417; the presence of a satchel in a
school corridor having resulted from lack of
supervision was only a mere possibility and not
established as a probability in Gaitani v. Trustees of the
Christian Brothers (1988) Aust Torts Reports, 80-156 )
11
• An increased risk of injury is not to be equated
with a material contribution to satisfy causation
(Bendix Mintex Pty Ltd v. Barnes (1997) 42
NSWLR 307 at 312, 316 and 337; State of New
South Wales v. Burton [2006] NSWCA 12 at [14]
and [91]). Further, it is not enough merely to
establish that a particular matter cannot be
excluded as a cause; Bendix Mintex Pty Ltd v.
Barnes ((1997) 42 NSWLR 307 at 339). Nor does
material reduction of risk equate with causation
(Bendix; Gold Ribbon (Accountants) Pty Ltd (In
Liq) v. Sheers [2006] QCA 335 at [286] per Keane
JA)
12
• The evidence must establish a legal
inference, and not mere conjecture, that the
act or omission complained of contributed
to the result. Conjecture, however
plausible, is of no legal value, it in essence
being only a guess (Law v. Visser [1961] Qd
R 46 at 69)
13
• In determining whether the legal inference may be drawn,
the Court can take into account common experience
(Adelaide Stevedoring Co Ltd v. Forst (1940) 64 CLR 538
at 564) and expert evidence (X v. Pal (1991) 23 NSWLR
26). Some areas may not be within the realm of
knowledge for common experience and common sense
and fall to be determined upon an analysis of expert
evidence (X v. Pal (infra) at 48; see also Da Costa v.
Australian Iron & Steel (1978) 28 ALR 257 at 266 per
Mason J, with whom Barwick CJ agreed in relation to
establishing breach of duty and causation which could
only be understood with the assistance of expert evidence
in the facts of that case) but that is a question of fact in
each case and not a question of law (Gold Coast City
Council v. Stocks [2002] QDC 304 at [18]) or necessarily
decisive (X v. Pal (infra) at 31)
14
•
The legal inference can be drawn, for example, by
proof that the incident was of a type that could
cause the harm concerned, coupled with a
temporal connection (for example in a personal
injuries case rendering a previously asymptomatic
condition into a symptomatic state; Watts v. Rake
(1960) 108 CLR 158; Purkess v. Crittenden (1965)
114 CLR 164; Shorey v. P T Ltd (2003) 77 ALJR
1104). But a mere temporal connection is
insufficient (Tubemakers of Australia Ltd v.
Fernandez (1976) 50 ALJR 720, 724)
15
•
Once that connection has been established (Falacca v.
Morrissy [1999] FCA 277), an evidential onus passes to
the Defendant to show an alternative cause which would
have produced the same result (by external or internal
causes) by a certain time (Watts v. Rake (infra); Purkess v.
Crittenden (infra); Shorey v. P T Limited (infra)).
Otherwise, if the Defendant cannot discharge the evidential
onus, such possibilities will only fall for assessment as a
contingency in the assessment of damages. If the evidence
does not establish this is any greater contingency outside
that normally expected, no further reduction of damages
will be made (Hopkins v. WorkCover Queensland [2004]
QCA 155; see also Seltsam Pty Ltd v. Ghaleb [2005]
NSWCA 208)
16
•
•
Liability for harm may attach to a wrongdoer whose
conduct is one of a number of causes of damage (for
example the subsequent negligence of a barrister in failing
to detect and correct the earlier negligence of a solicitor
was not a break in the chain of causation. Both contributed
to the Plaintiff’s loss; Bennett v. Minister for Community
Welfare (1992) 176 CLR 408; Elbourne v. Gibbs [2006]
NSWCA 127 at [74])
Subject to the proportionate liability provisions in the
CLA, where applicable, if there are several concurrent
tortfeasors to an indivisible loss, liability is unitary, each
being severely liable fully to the Plaintiff (see for example
Spiers v. Caledonian Collieries (1956) 57 SR(NSW) 483,
affirmed (1957) 97 CLR 202).
17
It is for this reason that statutory tortfeasor contribution
was introduced, the current incarnation now found in
section 6 of the Law Reform Act 1995. In the case of a
divisible loss, each wrongdoer is only liable for the
divisible component of that loss (Seltsam Pty Ltd v. Ghaleb
[2005] NSWCA 208). Several contributions to a loss
(divisible or indivisible) are to be distinguished from the
causal effect of successive losses or injuries on earlier
losses or injuries (as to which see State Government
Assurance Commission v. Oakley (1990) Aust Torts
Reports, 81-003 at 67,577; Lee v. Quality Bakers Australia
Limited [2000] QCA 285; Nilon v. Bizzina [1998] 2 Qd R
420; Faulkner v. Keffalinos (1970) 45 ALJR 1885)
18
Scope of liability
•
This aspect of the enquiry looks beyond material
contribution of cause and subsequent effect. It seeks to
normalise, by the application of “common sense”, what
might fairly and sensibly be seen, in the eyes of the law, as
the cause. “Considerations of policy are relevant and value
judgments are required in order to determine matters of
causation for the purposes of attributing liability in
negligence” (AMP General Insurance Ltd v. RTA (NSW)
[2001] NSWCA 186 at [27]). Many adjectives have been
used, such as “operative cause” or “substantial” “material”
or “real” cause
19
A simple example of the normative enquiry
resulting in a failure to establish causation is
where an experienced mine deputy had apparently
lit a naked flame while undertaking a pre-shift
inspection of a coal mine. The mine was not
adequately ventilated but the resulting fatal
explosion was held to be caused by his actions
rather than the lack of ventilation (Sherman v.
Nymboida Collieries Pty Ltd (1963) 109 CLR
580)
20
•
•
Likewise where a deceased injured in an accident,
committed suicide following rigorous cross-examination in
an application to extend the limitation period, consequent
upon which he de-compensated afresh, the suicide was
seen as the cause of the loss and not the original accident
(AMP General Insurance Limited v. RTA [2001] NSWCA
186; cf Lisle v. Brice (infra))
In Postnet Pty Ltd v. Wood ([2002] ACTCA 5), the Plaintiff
entrant in a nightclub was injured after exiting through a
window to an awning and then to a nearby building from
which he fell. The cause was his deliberate conduct rather
than the failure to prevent access to the awning by the
occupier
21
•
Normative evaluation or value judgments can also extend
liability. In Keeys v. State of Queensland ([1998] 2 Qd R
36 at 40-41), McPherson J averted to policy expressly as a
reason to extend liability - “[liability] ought not be left to
rest on too exact or precise an analysis of what the Plaintiff
might or might not have done, had he been given an
opportunity, which everyone accepts he ought to have had,
to take precautions for his own safety”
22
• Other examples of a normative evaluation supporting
liability are where the conduct of the Plaintiff was
reasonable, leading to the loss or further loss, such as the
voluntary decision to retire from an appointment with
secured tenure because of injury (Medlin v. State
Government Insurance Commission (1995) 182 CLR 1),
the decision to seek out reasonable medical advice which
negligently increases the harm (Mahony v. J Kruschich
(Demolitions) Pty Ltd (1985) 156 CLR 522) and the
decision of a police officer to continue in a high speed
chase (Hirst v. Nominal Defendant [2005] 2 Qd R 133).
The Plaintiff’s family and cultural background are relevant
when considering this normative enquiry (Kavanagh v.
23
Akhtar (1998) 45 NSWLR 558 at 601)
• The normative enquiry is particularly important where
causation has been considered in a statutory context, such
as the Trade Practices Act 1974 or its equivalents. In that
respect, what causal connection, if any, is needed and the
scope of the intended liability are divined from the true
construction of the legislation and its objects (Henville v.
Walker (2001) 206 CLR 459; Travel Compensation Fund v.
Tambree (2005) 224 CLR 627)
24
The role of subsection 11(1)
• The function of subsection 11(1) appears to be to compel a
factual appraisal and a direct requirement to address the
“normative” question in each case rather than the
normative enquiry remaining buried within a reference to a
compound “common sense” appraisal. For example, see
the approach of the New South Wales Court of Appeal to
section 5D of the Civil Liability Act 2002 (NSW), the
analogue of section 11, in Graham v. Hall ([2006]
NSWCA 208 per Ipp JA)
25
Subsection 11(2) “Exceptional
Cases”
• This section appears to have been particularly influenced
by the writings of Professor Jane Stapleton:- for example
“Lords a’leaping evidentiary gaps” (2002) 10 TLJ 276;
expressly acknowledged by Ipp JA referring to “Cause-inFact and the Scope of Liability for Consequences” (2003)
119 LQR 388 in Ruddock v. Taylor (infra) at paragraphs
[85]-[89]
• Professor Stapleton reviewed the role of “material
contribution” as espoused in McGhee v. National Coal
Board [1973] 1 WLR 1 and Fairchild v. Glenhaven
Funeral Services Ltd [2003] 1 AC 32.
26
• McGhee/Fairchild, Professor Stapleton argues, directly
addressed an evidentiary gap and established a rule of law
that, in exceptional cases, a Court is allowed to substitute
orthodox proof of cause-in-fact. Professor Stapleton
opines that this is a preferable formulation because it is
more transparent than suggesting it is part of a process of
robust inferences (see Stapleton “Lords a’leaping
evidentiary gaps” at 291)
• In McGhee, the state of medical knowledge did not permit
a finding that the brick dust had caused the Plaintiff’s
development of dermatitis. In Fairchild, the mesothelioma
may have been caused by exposure to asbestos by a
number of employers and the Plaintiff could not isolate
which. In both cases the injury was indivisible. Despite
this imprecision, the Plaintiff succeeded in both cases
27
against the employer
• Professor Stapleton argues that this is jumping the
evidentiary gap in the exceptional case of the
limits of the best evidence available being reached
- in both of those cases, medical evidence – when
the contribution of the possibility was established
• Whilst McGhee has been approved in Australia by
the High Court (see for example Naxakis v.
Western General Hospital (1999) 197 CLR 269 at
[31], [76] and [127]), Australian Courts have
preferred to approach the issue by “inferential
reasoning”, elevating a possibility to a probability.
28
For example, in McGhee, the employer’s
omission was the only possible cause of the
dermatitis, there being no other possibility
of equal value. The employer’s breach of
duty in that context was highly significant.
By comparison, in Wilshire v. Essex Area
Health Authority [1988] AC 1074, the
Hospital’s omission was only one of a
number of possible causes and the Plaintiff
had not shown what part, if any, that
omission had played
29
• Where direct proof is not available, it is enough if the
circumstances give rise to a reasonable and definite
inference between competing possibilities. They must do
more than give rise to conflicting inferences of equal
degrees of probability so that the choice between them is
mere conjecture (TNT Management Pty Ltd v. Brooks
(1979) 23 ALR 345 at 349-50). As noted above, conjecture
is a guess and of no legal value.
• A possibility may be elevated to a probability if it can be
shown to be of greater value because of some feature,
special to the circumstances, or a fact which makes that
particular possibility more likely than not, using common
experience and expert evidence (Dahl v. Grice [1981] VR
513, 522). Such a state of evidence establishes a basis for a
legal inference and is not merely conjecture as the
possibilities are not of equal value
30
• If there was only one possibility, established as a fact as a
contributory possibility (and not merely a possible
contribution as discussed above), a temporal sequence of
events and surrounding circumstances suggesting
causation, in the absence of an alternative cause being
established or even suggested, provides special reason to
elevate that possibility to a probability (for example, the
simple case and explanation in Barker v. SGIO (Qld)
((1988) 7 MVR 270 at 276 per Williams J, applying West v.
GIO (NSW) (1981) 148 CLR 62)
• This process of inferential reasoning is well established in
Australian law (Girlock Sales (Pty Ltd) v. Hurrell (1982)
149 CLR 155; see also Miller v. Livingstone Shire Council
[2002] QSC 180 at [18]; [2003] QCA 29 at [4]).
31
The role of subsection 11(2)
• The reference to “whether or not and why responsibility
should be imposed” is a reference to the “exceptional
case”, such as Fairchild, where the limits of the best
evidence explaining causation have been reached. The
Plaintiff could not establish which employer was
responsible – so they all were
• There was no doubt about the breach of each employer but
the causal link between a breach by each employer and the
condition suffered could not be shown as the Plaintiff
could not distinguish between each of the employers. Each
breach was a possible material contributor, not just
possibly a material contributor
32
• Most cases in Australia will continue to be able to
be resolved by orthodox inferential reasoning but
subsection 11(2) expressly authorises the jumping
of an evidentiary gap where the possibilities are of
equal value, as occurred in Fairchild
• This section has great potential where a Plaintiff
can point to a just result if the best possible
evidence has been put before the Court, be that
medical, financial, engineering or otherwise. Its
precise limits are yet to be discerned
33
The role of subsection 11(3)
• Subsection 11(3)(a) adopts the Australian legal position
(see for example Chappel v. Hart (1998) 195 CLR 232 at
247, 272-3; Hallmark-Mitex Pty Ltd v. Rybarczk,
unreported, QLDCA, 4 September 1998; Hill-Douglas v.
Beverley [1998] QCA 435). It is the subjective response of
that particular Plaintiff, objectively ascertained, which is
relevant
34
• It is the objective ascertainment of that subjective response
which is the area of contest. The Courts had long accepted
that, the test being subjective, the Plaintiff’s ex post facto
statement of what he or she would have done was
receivable for objective appraisal but, in many
circumstances, would be given little or no weight
(Rosenberg v. Percival (2001) 205 CLR 434 at [163], [87][89], [221]; see also Vairy v. Wyong Shire Council (2005)
223 CLR 422 at [226]; Chappel v. Hart (infra))
35
• The object of subsection 11(3)(b) is, self-evidently, to
make the ex post facto hypothecation of the Plaintiff
inadmissible, and not just a matter of weight. The
subjective response of the Plaintiff may still be proved by
propensity evidence, (inadmissible on breach but
admissible on causation; Hirbar v. Wells (1995) 64 SASR
129 at 140), commercial intent (Hanflex Pty Ltd v. N S
Hope & Associates [1990] 2 Qd R 218), contemporaneous
evidence of likely response (see for example
Commissioner of Main Road v. Jones (2005) ALJR 1104 at
[10]; Enwright v. Coolum Resort Pty Ltd [2002] QSC 394)
and even personality traits such as being cautious or,
alternatively, being reckless and anti-social (Scarf v.
Queensland [1998] QSC 233).
36
• Subsection 11(3)(b) may be seen to be a radical change
but, in view of the Court’s reluctance to act on such
evidence, its impact may not be as a great as first thought.
Note that an admission by the Plaintiff that the act or
omission would not have made a difference to the course
of conduct adopted, if against interest, is admissible
37
The role of subsection 11(4)
• The primary object of subsection 11(4) appears to give
express statutory imprimatur to the normative
considerations outlined above to either restrict liability or,
as Keeys shows, to impose it. This supports the object in
subsection 11(1)(b) to expressly require the normative
considerations to be addressed
38
Section 12
• Section 12 emphasises two main points:• The Plaintiff always bears the onus of any fact relevant
to the issue of causation;
• That onus is always on the balance of probabilities
39
The Betts principle
• In Betts v. Whittingslowe (1945) 71 CLR 637 at
648-649, Dixon J observed:“The breach of duty, coupled with an accident of
the kind that might thereby be caused, is enough to
justify an inference, in the absence of any
sufficient reason to the contrary, that, in fact, the
incident did not occur owing to the act or omission
… In the circumstances of this case, that
proposition is enough. For, in my opinion, the
facts warrant no other inference inconsistent with
liability on the part of the Defendant” (underlining
added)
40
• Concern has been expressed that this statement has
been converted to a statement reversing the onus
of proof. The Ipp report viewed some comments
in the High Court as tending in this direction
(specifically the reasoning of Gaudron J in Bennett
v. Minister for Community Welfare (1992) 176
CLR 408 at 420-22; see also McHugh J in
Chappel v. Hart (1998) 195 CLR 232 at [34];
Gaudron J in Naxakis v. Western General Hospital
(1999) 197 CLR 269 at [31]). For example, in
Naxakis, Gaudron J stated:41
“In that situation the trier of fact – in this
case, a jury – is entitled to conclude that the
act or omission caused the injury in
question unless the Defendant establishes
that the conduct had no effect at all or that
the risk would eventuate and result in the
damage in question in any event”. The Ipp
report recommended a statutory
enshrinement that Plaintiffs always bear the
onus of proof of causation on the balance of
probabilities:- at [7.36]
42
• This view of the statements in the High Court considering
the Betts principle has been rejected in Queensland (Batiste
v. Queensland [2002] 2 Qd R 119) in New South Wales
(Seltsam Pty Ltd v. McGuinness (2000) 49 NSWLR 262; T
C v. State of New South Wales [2001] NSWCA 380; see the
review of the authorities by Ipp JA in Flounders v. Millar
[2007] NSWCA 238 at [22]-[39]) and in Victoria (Shire of
Wakool v. Walters [2005] VSCA 216 at [48]) but accepted
in Western Australia (Amaca Pty Ltd v. Hannell [2007]
WASCA 158 at [395]
43
• It is for this reason that the legislature has intervened. It
does not change the law in Queensland
• The Queensland (and, with respect, the better,) view is that
the Betts principle refers to a shifting evidential onus. If a
breach is established consisting of an omission to take a
proper precaution, in determining whether the Plaintiff
would have acted in such a way as to avoid the risk (the
negative aspect of causation), it is open to the Court to
infer that the Plaintiff would have so acted in the absence
of any sufficient reason to the contrary
44
• All members of the Court of Appeal in Batiste approached
the question in this way. The majority viewed Betts as
authorising the drawing of an inference in the context of
determining, as a question of fact, whether there are any
other competing inferences of equal or greater probability.
Their Honours were of the view that the real question was
whether the trial Judge had averted to competing causes
and formed the view that the conclusion reached by the
trial Judge was open. Muir J, who dissented, on the other
hand, was of the view that “the trial Judge had erred by
treating the Betts principle as one which ignored the need
to look for the existence of any reason which would negate
the inference which [the trial Judge] was entitled, but not
obliged, to draw” (at paragraph [39])
45
• This emphasises the need in such a case for evidence
negating the inference, or competing hypotheses, to be
placed before the Court. That evidence may take many
forms in the circumstances of the case, similar to that
involved in evaluating competing established possibilities
– for example, commercial intent, disposition, previous
conduct, and contemporaneous action. The problem is
particularly difficult where causation turns on what a Third
Party would, or would not have, done. In such
circumstances, a Court may be slow to draw such an
inference but it may properly be drawn where the
behaviour of the Third Party is objectively likely, for
example, where the Third Party’s self interest points at a
particular direction (per Keane JA in Gold Ribbon
(Accountants) Pty Ltd (In Liq) v. Sheers [2006] QCA 335
at [281] and [284])
46
Loss of a chance
• Concern also exists that there has been a
weakening of the civil onus in cases of loss of a
chance of a benefit or avoiding a detriment
• The distinction must be maintained between
identifying a species of “damage”, being the loss
of the chance, which is recoverable if caused by a
breach, on the probabilities, and the assessment of
that lost chance as “damages”
47
• It is submitted the authorities establish the following:•In negligence, the tort is not complete until “damage”
has been suffered (Rankin v. Garton Sons and Co Ltd
[1979] 2 All ER 1185 at 1189). “Damage” only
accrues when it is beyond what can be regarded as
negligible (Martindale v. Burrows [1997] 1 Qd R 243
at 246 per Derrington J; Orica Ltd v. CGU Insurance
Ltd (2003) 59 NSWLR 14 at page 22 “sufficiently
material”). In contract, a breach if actionable without
loss (See the authorities collected by Lindgren J in
Cell Tech Communications Pty Ltd v. Nokia Mobile
Phones (UK) Ltd (1996) 136 ALR 733 at 750) but
recovery of substantive, and not nominal damages,
requires proof of a loss of substance
48
•That a chance of avoiding a detriment or gaining an
advantage has been lost must be established by the
Plaintiff on the probabilities (Green v. Chenoweth
[1998] 2 Qd R 572; see also Hill-Douglas v. Beverley
(unreported, QLDCA, 18 December 1998); see also
Gold Ribbon (infra) at [284]). This includes the
chance of a better outcome (Rufo v. Hosking (2004) 61
NSWLR 678, especially at paragraph [40]; Gavalis v.
Singh [2001] 3 VR 404)
•The Plaintiff must establish, on the probabilities, the
chance was lost as a result of the alleged breach (Rufo
at paragraphs [40] and [41]; Green v. Chenoweth
(infra); Hill-Douglas v. Beverley (infra))
49
If such a chance is established, on the probabilities, then it
is damage sufficient for a claim in contract, tort or
(depending on the statute) on a statutory basis, such as the
TPA (Sellars v. Adelaide Petroleum NL (1994) 179 CLR
332, applying Malec v. JC Hutton Pty Ltd (1990) 169 CLR
638 to the assessment of damages under the TPA), if the
lost chance is a chance “of substance”, or, of “some value
not being negligible”, rather than “speculative” (Bradley v.
Stanek (unreported, QLDCA, 18 December 1998) at [10][11] per McPherson JA, with whom McKenzie J agreed;
see also Rufo (infra) at [3] and [4]; CES v. Super Clinics
(1995) 38 NSWLR 47 at page 57 per Kirby P “a loss of
that opportunity itself being of value to the Appellants
because of the possibility of her availing herself of the
opportunity … the Appellants would have to establish that
loss or damage had been sustained by deprivation of the
opportunity. However that would be done by simply
demonstrating that the opportunity which was lost by the
Respondent’s negligence was of some value, but not
negligible value, to the Appellants” (underlining added) 50
•The evaluation or assessment of the lost chance for
damages (not damage) is “ascertained by reference to
the degree of probabilities or possibilities” (Sellars
(infra) at 355; Bradley v. Stanek at [11])
• The loss of chance approach might erroneously conflate
establishing the existence of the chance, on the
probabilities, as “damage” with the assessment of the
chance as “damages”, especially where the chance claimed
is more than 50% (cf Naxakis (infra) at [312]-[313] per
Callinan J; New South Wales v. Burton [2006] NSWCA 12
at [25] and [27], [80]; Halverson v. Dobler [2006] NSWSC
1307 at [248]). For example, in Halverson, it was said:
“… insofar as ‘loss of a chance’ presently has a place in
personal injury cases on the current state of the law in New
South Wales, it is in cases where the Plaintiff cannot prove
causation on the balance of probabilities, and, accordingly,
the lost chance is less than 50%” (underlining added)
51
• This does not authorise the assessment of damages
if the Plaintiff cannot prove causation on the
balance of probabilities. Rather, the distinction is
drawn between causation of the whole loss on the
one hand and a case framed by establishing, on the
probabilities, a lost chance of less than 50%, on
the other. According to the civil onus, if it
established that the chance is more than 50%,
causation is proved in relation to the whole
• The role of section 12 in this respect is to mandate
that the civil onus, the balance of probabilities, has
not been diluted.
52