TORTS LECTURE 7
C A U S AT I O N & D A M A G E
CLARY CASTRISSION
CLARY@40K.COM.AU
Tonight’s lecture
1. Understanding ‘damage’ in negligence claims
2. Factual Causation
1.The But For test
2.Limitations of the But For Test
3.Interesting situations
4.Novus Actus Interveniens
3. Legal Causation (remoteness)
1.Egg-Shell Skull Cases
4. s5D of the CLA
5. Bringing Negligence together…
DAMAGE IN NEGLIGENCE
Duty of care
Negligence
Breach
Damage
DAMAGE IN NEGLIGENCE
Damage is the gist of the action in Negligence
The scope of actionable damage (s5 CLA):
 property
 personal
 Mental: s31
 pure economic loss
Damage must be actual for compensation; no cause of action
accrues until damage
2 STEP PROCESS
1. Factual causation
2. Legal causation (remoteness)
1. FACTUAL CAUSATION
For P to be successful in an action in Negligence, D’s
breach of duty must cause damage to P or his/her
property
Fitzgerald v Penn (1954) 91 CLR 268 at 277-8:
 It is a mistake to attempt either to explain ‘causation’
as a general conception to a jury or to define for them
a degree of closeness which must subsist in the
connection between wrongdoing and damage. To begin
with, it is not really necessary, because a jury is
expected to have a sound common sense idea of what
is meant by saying that one fact is a cause of another,
and it is all ultimately a matter of common sense.
March v Stramare
Chappel v Hart
1. Factual causation (cont)
The ‘but for’ test
Would the P still have suffered the harm but for D’s
negligence?
• Barnett v Chelsea and Kensington Hospital [1969] 1
QB 428
1. Factual causation (cont)
Limitations on the ‘but for’ test
1. Trouble with eliminating ‘contributing reasons’
2. Two or more tortious acts
March v Stramare (1991) 171 CLR 506 per Deane J
(at 523):
 [The ‘But For’ test should not be the exclusive test
as it] “would lead to the absurd and unjust position
that there was no ‘cause’ of an injury in any case
where there were present two independent and
sufficient causes of the accident in which the injury
was sustained.” (at 523)
What happens when you can’t conclusively
prove the defendant caused the harm?
McGhee v National Coal Board (1973) 1 WLR 1
Wilsher v Essex Area Health Authority [1987] 3 All ER 801
And in Australia…
Chappel v Hart (1998) 1995 CLR 232
McHugh J at [27]:
 If a wrongful act or omission results in an increased risk of
injury… and that risk eventuates, the defendant’s conduct
has materially contributed to the injury… whether or not
other factors have also contributed.
NOVUS ACTUS INTERVENIENS
D will avoid liability if the subsequent act that
exacerbated/caused the injury was not reasonably
foreseeable: March v Stramare.
Lord Wright in The Oropesa [1943] P 32
 “To break the chain of causation it must be shown that there is
something I will call ultroneous, something unwarrantable, a new
cause which disturbs the sequence of events, something which can be
described as either unreasonable or extraneous or extrinsic”
Haber v Walker [1963] VR 339
Very hard to prove:
 Chapman v Hearse
 Kavanagh v Akhtar (1998) 45 NSWLR 588
Where it has worked
 McKew v Holland & Hannon & Cubitts Ltd [1969] 3 All ER 1621
2. LEGAL CAUSATION (REMOTENESS)
Whether the scope of negligence should extend to the harm
caused.
 Beavis v Apthorpe (1962) 80 WN (NSW) 852 at 856 per
Herron CJ:
 In one sense, almost nothing is quite unforeseeable, since
there is a very slight mathematical chance, recognizable in
advance, that even the most freakish accidents will occur.
In another, nothing is entirely foreseeable, since the exact
details of a sequence of events never can be predicted
with complete confidence.
REMOTENESS
Were the injuries a reasonably foreseeable consequence of
the act?
Wagonmound No. 1 [1961] AC 388
Wagonmound No. 2 [1967] AC 617
Chapman v Hearse
Type of harm being foreseeable
 Tremain v Pike [1969] 3 All ER 1303
 Bradford v Robinson Rentals Ltd [1967] 1 All ER 267
 Hughes v Lord Advocate [1963] AC 837
EGG-SHELL SKULL CASES
Negretto v Sayers [1963] SASR 313 at 318.
Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501
Golder v Caledonian Railway Co (1902) 5 F (Ct of Sess) 123
S5D CLA
(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.
(3) If it is relevant to the determination of factual causation to determine what the person
who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances,
subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she
would have done is inadmissible except to the extent (if any) that the statement is
against his or her interest.
(4) For the purpose of determining the scope of liability, 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.
Tonight’s lecture
1. Understanding ‘damage’ in negligence claims
2. Factual Causation
1.The But For test
2.Limitations of the But For Test
3.Interesting situations
4.Novus Actus Interveniens
3. Legal Causation (remoteness)
1.Egg-Shell Skull Cases
4. s5D of the CLA
5. Bringing Negligence together…
BRINGING IT ALL TOGETHER- YOUR TURN
Paul owned a restaurant in Liverpool (Sydney) called “The Cavern Club,” which was
licensed to serve alcohol between midday and 4am each day. The restaurant, on the 2nd
floor of a building, had never had any violent incidents before, apart from one occasion
three years ago when a bikie gang called “The Stones” yelled abuse at some patrons.
On Australia Day Eve last year, The Cavern Club was open for a dinner and dance- 295
people booked in advance to attend. It was attended largely by groups of families,
including children and the elderly. Alcohol was served to patrons. Paul figured that
because there had never been any issues in his restaurant, there was no need to hire
any security guards for the evening.
A fight broke out between two women, Linda and Yoko on the dancefloor. Chairs, plates
and bottles thrown. Onlookers joined in and before you knew it, it was an all-out brawl.
One man, John, was hit in the face by Ringo, drawing blood. John left and came back
with a gun. When another man, George, saw John come into the restaurant with a gun,
he ran into the kitchen and slipped. John followed him into the kitchen, and despite
George begging and pleading to not be shot, he was shot in the leg.
John then went and found Ringo, who drew the first blood, and shot him in the stomach.
Advise George and Ringo (together) as to whether they can sue The Cavern Club. Do not
discuss damages.