Queensland Bar AssociationQueensland Bar Association

Sections 11 and 12 of the Sections 11 and 12 of the Civil Liability Act 2003 - Civil Liability Act 2003 - CausationCausation

Kevin HolyoakKevin HolyoakSir Harry Gibbs ChambersSir Harry Gibbs Chambers

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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.

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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 The CLA regulation of causation therefore has a tortious focus. In any event, there is authority in tortious focus. In any event, there is authority in Queensland that “in reality causation in a commercial Queensland that “in reality causation in a commercial contractual context seems no different from causation in contractual context seems no different from causation in negligence” (negligence” (Coley v. Nominal DefendantColey v. Nominal Defendant [2004] 1 Qd [2004] 1 Qd R 239 at paragraph [16] per McMurdo P, with whom R 239 at paragraph [16] per McMurdo P, with whom Jerrard JA agreed)Jerrard JA agreed)

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Section 11 of the CLA

• Subsection 11(1) divides the causal inquiry Subsection 11(1) divides the causal inquiry into two elements:-into two elements:-

(a)(a) factual causation;factual causation;

(b)(b) scope of liabilityscope of liability• Subsections 11(2) and 11(3) further regulate Subsections 11(2) and 11(3) further regulate

“factual causation”. Subsection 11(4) “factual causation”. Subsection 11(4) further regulates “scope of liability”further regulates “scope of liability”

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• Section 11 adopts recommendation 29 of the “Ipp” report, Section 11 adopts recommendation 29 of the “Ipp” report, Review of the law of negligence report, 2 October 2002 – Review of the law of negligence report, 2 October 2002 – paragraph [7.25]-[7.51]. The report accepted the existing paragraph [7.25]-[7.51]. The report accepted the existing law (for example as listed in law (for example as listed in Wallaby Grip (BAE) v. Wallaby Grip (BAE) v. Macleay Area Health Service Macleay Area Health Service (1998) 17 NSWCCR 355; (1998) 17 NSWCCR 355; BC9806780) but opined there ought be established in a BC9806780) but opined there ought be established in a statutory template a suitable framework to resolve statutory template a suitable framework to resolve individual cases and to preclude a Plaintiff from giving individual cases and to preclude a Plaintiff from giving evidence as to what, hypothetically, would have been done evidence as to what, hypothetically, would have been done had the duty of care been discharged. This was to had the duty of care been discharged. This was to counteract “hindsight bias” (Ipp report [7.40])counteract “hindsight bias” (Ipp report [7.40])

• Section 11 regulates existing and developing law and is Section 11 regulates existing and developing law and is not a code: subsection 7(5) of the CLA.not a code: subsection 7(5) of the CLA.

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Common law principles

• Subsection 11(1) provides a bifarcal test. The High Subsection 11(1) provides a bifarcal test. The High Court authorities held that the conception of Court authorities held that the conception of “causation” is not susceptible of reduction to a “causation” is not susceptible of reduction to a satisfactory formula (per Dixon CJ, Fullagher and Kitto satisfactory formula (per Dixon CJ, Fullagher and Kitto JJ in JJ in Fitzgerald v. PennFitzgerald v. Penn (1954) 91 CLR 268 at 277, (1954) 91 CLR 268 at 277, adopted by Mason CJ, (with whom Gaudron J agreed) adopted by Mason CJ, (with whom Gaudron J agreed) in in March v. E & M H StramereMarch v. E & M H Stramere Pty LtdPty Ltd (1991) 171 (1991) 171 CLR 506 at 515) and that there is only one compound CLR 506 at 515) and that there is only one compound enquiry with the scope of liability or normative enquiry enquiry with the scope of liability or normative enquiry also playing a role in the assessment of fact (also playing a role in the assessment of fact (Travel Travel Compensation Fund v. TambreeCompensation Fund v. Tambree (2005) 224 CLR 627 (2005) 224 CLR 627 at [81] per Callinan J)at [81] per Callinan J)

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• Section 11 is an endeavour to reduce causation to a Section 11 is an endeavour to reduce causation to a formula, adopting the twin divisional enquiry favoured formula, adopting the twin divisional enquiry favoured in some intermediate appellate Court authorities (see in some intermediate appellate Court authorities (see for example Mahoney JA in for example Mahoney JA in Barnes v. HayBarnes v. Hay (1988) 12 (1988) 12 NSWLR 337, 353; NSWLR 337, 353; Petrou v. Hatigeorgiou Petrou v. Hatigeorgiou (1991) Aust (1991) Aust Torts Reports 81-071, at 68,566; Torts Reports 81-071, at 68,566; Ruddock v. TaylorRuddock v. Taylor (2003) 58 NSWLR 269 at [85]-[89] – overturned in the (2003) 58 NSWLR 269 at [85]-[89] – overturned in the High Court but on different grounds; cf High Court but on different grounds; cf Lisle v. BriceLisle v. Brice [2002] 2 Qd R 168 at paragraphs [24]-[29])[2002] 2 Qd R 168 at paragraphs [24]-[29])

• Attempts have been made to list the common law Attempts have been made to list the common law principles (principles (Wallaby Grip (BAE) v. Macleay Area Wallaby Grip (BAE) v. Macleay Area Health Service Health Service (infra); (infra); Tabet v. Mansour Tabet v. Mansour [2007] [2007] NSWSC 36)NSWSC 36)

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Factual causation

• The Plaintiff must establish, on the balance of The Plaintiff must establish, on the balance of probabilities, that the Defendant’s breach probabilities, that the Defendant’s breach caused, or materially contributed to, the harm caused, or materially contributed to, the harm ((Bonnington Castings Ltd v. Wardlaw Bonnington Castings Ltd v. Wardlaw [1956] [1956] AC 610)AC 610)

• Causation as a question of fact must be Causation as a question of fact must be determined by applying common sense to the determined by applying common sense to the facts of each particular case (facts of each particular case (March v. E & M HMarch v. E & M H

StramereStramere at 515). Foreseeability is not a test of at 515). Foreseeability is not a test of causation (causation (Chapman v. HearseChapman v. Hearse (1961) 106 CLR (1961) 106 CLR 112)112)

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• There is a positive aspect and a negative aspect to There is a positive aspect and a negative aspect to causation (for example, see the treatment of the causation (for example, see the treatment of the question of causation by Jerrard JA, with whom the question of causation by Jerrard JA, with whom the other members of the Court agreed, in other members of the Court agreed, in Calvert v. Mayne Calvert v. Mayne Nickless Ltd (No. 1) Nickless Ltd (No. 1) [2006] 1 Qd R 106 at [90]-[99])[2006] 1 Qd R 106 at [90]-[99])

• The positive aspect requires there to be evidence The positive aspect requires there to be evidence from which it may be fairly inferred, as a from which it may be fairly inferred, as a probability, that the accident resulted from some probability, that the accident resulted from some want of care on the part of the Defendant (want of care on the part of the Defendant (Davis v. Davis v. BunnBunn (1936) 56 CLR 246, 255) (1936) 56 CLR 246, 255)

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• The negative aspect requires consideration of The negative aspect requires consideration of whether the step which ought to have been taken whether the step which ought to have been taken would have made a difference and the extent to would have made a difference and the extent to which it would have made a difference (for example which it would have made a difference (for example Greg v. ScottGreg v. Scott [2005] 2 AC 176 at 203 at [106]) “it is [2005] 2 AC 176 at 203 at [106]) “it is axiomatic that the wrongdoer is not liable for any axiomatic that the wrongdoer is not liable for any loss, injury or damage that would have happened loss, injury or damage that would have happened anyway”). This is the most appropriate use of the anyway”). This is the most appropriate use of the “but for” test (“but for” test (March v. E & M H Stramere Pty Ltd March v. E & M H Stramere Pty Ltd (infra))(infra))

• A contribution will be material if it is shown on the A contribution will be material if it is shown on the evidence not to be negligible (evidence not to be negligible (Western Australia v. Western Australia v. WatsonWatson [1990] WAR 248) [1990] WAR 248)

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• Establishing a mere possibility that a matter has Establishing a mere possibility that a matter has contributed, is not a material contribution to the harm contributed, is not a material contribution to the harm (Seltsam Pty Ltd v. McGuinness(Seltsam Pty Ltd v. McGuinness (2000) 49 NSWLR (2000) 49 NSWLR 262 at 280 [118], [119] and [153]; see also 262 at 280 [118], [119] and [153]; see also Forbes v. Forbes v. Selleys Pty LtdSelleys Pty Ltd [2004] NSWCA 149 where the Court [2004] NSWCA 149 where the Court was not persuaded that the possibility contended for was not persuaded that the possibility contended for had been established; had been established; Kay v. Aryshire & Aaron Health Kay v. Aryshire & Aaron Health Board Board [1987] 2 All ER 417; the presence of a satchel in [1987] 2 All ER 417; the presence of a satchel in a school corridor having resulted from lack of a school corridor having resulted from lack of supervision was only a mere possibility and not supervision was only a mere possibility and not established as a probability in established as a probability in Gaitani v. Trustees of the Gaitani v. Trustees of the Christian BrothersChristian Brothers (1988) Aust Torts Reports, 80-156 ) (1988) Aust Torts Reports, 80-156 )

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• An increased risk of injury is not to be equated An increased risk of injury is not to be equated with a material contribution to satisfy causation with a material contribution to satisfy causation ((Bendix Mintex Pty Ltd v. BarnesBendix Mintex Pty Ltd v. Barnes (1997) 42 (1997) 42 NSWLR 307 at 312, 316 and 337; NSWLR 307 at 312, 316 and 337; State of New State of New South Wales v. Burton South Wales v. Burton [2006] NSWCA 12 at [14] [2006] NSWCA 12 at [14] and [91]). Further, it is not enough merely to and [91]). Further, it is not enough merely to establish that a particular matter cannot be establish that a particular matter cannot be excluded as a cause; excluded as a cause; Bendix Mintex Pty Ltd v. Bendix Mintex Pty Ltd v. BarnesBarnes ((1997) 42 NSWLR 307 at 339). Nor does ((1997) 42 NSWLR 307 at 339). Nor does material reduction of risk equate with causation material reduction of risk equate with causation ((Bendix; Gold Ribbon (Accountants) Pty Ltd (In Bendix; Gold Ribbon (Accountants) Pty Ltd (In Liq) v. SheersLiq) v. Sheers [2006] QCA 335 at [286] per Keane [2006] QCA 335 at [286] per Keane JA)JA)

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• The evidence must establish a legal The evidence must establish a legal inference, and not mere conjecture, that the inference, and not mere conjecture, that the act or omission complained of contributed act or omission complained of contributed to the result. Conjecture, however to the result. Conjecture, however plausible, is of no legal value, it in essence plausible, is of no legal value, it in essence being only a guess (being only a guess (Law v. VisserLaw v. Visser [1961] [1961] Qd R 46 at 69)Qd R 46 at 69)

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• In determining whether the legal inference may be drawn, In determining whether the legal inference may be drawn, the Court can take into account common experience the Court can take into account common experience ((Adelaide Stevedoring Co Ltd v. Forst Adelaide Stevedoring Co Ltd v. Forst (1940) 64 CLR 538 (1940) 64 CLR 538 at 564) and expert evidence at 564) and expert evidence (X v. Pal (X v. Pal (1991) 23 NSWLR (1991) 23 NSWLR 26). Some areas may not be within the realm of 26). Some areas may not be within the realm of knowledge for common experience and common sense knowledge for common experience and common sense and fall to be determined upon an analysis of expert and fall to be determined upon an analysis of expert evidence (evidence (X v. PalX v. Pal (infra) at 48; see also (infra) at 48; see also Da Costa v. Da Costa v. Australian Iron & Steel Australian Iron & Steel (1978) 28 ALR 257 at 266 per (1978) 28 ALR 257 at 266 per Mason J, with whom Barwick CJ agreed in relation to Mason J, with whom Barwick CJ agreed in relation to establishing breach of duty and causation which could establishing breach of duty and causation which could only be understood with the assistance of expert evidence only be understood with the assistance of expert evidence in the facts of that case) but that is a question of fact in in the facts of that case) but that is a question of fact in each case and not a question of law (each case and not a question of law (Gold Coast City Gold Coast City Council v. StocksCouncil v. Stocks [2002] QDC 304 at [18]) or necessarily [2002] QDC 304 at [18]) or necessarily decisive (decisive (X v. PalX v. Pal (infra) at 31) (infra) at 31)

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• The legal inference can be drawn, for example, by The legal inference can be drawn, for example, by proof that the incident was of a type that could proof that the incident was of a type that could cause the harm concerned, coupled with a cause the harm concerned, coupled with a temporal connection (for example in a personal temporal connection (for example in a personal injuries case rendering a previously asymptomatic injuries case rendering a previously asymptomatic condition into a symptomatic state; condition into a symptomatic state; Watts v. Rake Watts v. Rake (1960) 108 CLR 158; (1960) 108 CLR 158; Purkess v. CrittendenPurkess v. Crittenden (1965) 114 CLR 164; (1965) 114 CLR 164; Shorey v. P T LtdShorey v. P T Ltd (2003) 77 (2003) 77 ALJR 1104). But a mere temporal connection is ALJR 1104). But a mere temporal connection is insufficient (insufficient (Tubemakers of Australia Ltd v. Tubemakers of Australia Ltd v. Fernandez Fernandez (1976) 50 ALJR 720, 724)(1976) 50 ALJR 720, 724)

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• Once that connection has been established (Once that connection has been established (Falacca v. Falacca v. Morrissy Morrissy [1999] FCA 277), an [1999] FCA 277), an evidentialevidential onus passes to onus passes to the Defendant to show an alternative cause which would the Defendant to show an alternative cause which would have produced the same result (by external or internal have produced the same result (by external or internal causes) by a certain time (causes) by a certain time (Watts v. RakeWatts v. Rake (infra); (infra); Purkess v. Purkess v. CrittendenCrittenden (infra); (infra); Shorey v. P T Limited Shorey v. P T Limited (infra)). (infra)). Otherwise, if the Defendant cannot discharge the Otherwise, if the Defendant cannot discharge the evidential onus, such possibilities will only fall for evidential onus, such possibilities will only fall for assessment as a contingency in the assessment of damages. assessment as a contingency in the assessment of damages. If the evidence does not establish this is any greater If the evidence does not establish this is any greater contingency outside that normally expected, no further contingency outside that normally expected, no further reduction of damages will be made (reduction of damages will be made (Hopkins v. WorkCover Hopkins v. WorkCover Queensland Queensland [2004] QCA 155; see also [2004] QCA 155; see also Seltsam Pty Ltd v. Seltsam Pty Ltd v. GhalebGhaleb [2005] NSWCA 208) [2005] NSWCA 208)

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• Liability for harm may attach to a wrongdoer whose Liability for harm may attach to a wrongdoer whose

conduct is one of a number of causes of damage (for conduct is one of a number of causes of damage (for example the subsequent negligence of a barrister in failing example the subsequent negligence of a barrister in failing to detect and correct the earlier negligence of a solicitor to detect and correct the earlier negligence of a solicitor was not a break in the chain of causation. Both was not a break in the chain of causation. Both contributed to the Plaintiff’s loss; contributed to the Plaintiff’s loss; Bennett v. Minister for Bennett v. Minister for Community WelfareCommunity Welfare (1992) 176 CLR 408; (1992) 176 CLR 408; Elbourne v. Elbourne v. GibbsGibbs [2006] NSWCA 127 at [74]) [2006] NSWCA 127 at [74])

• Subject to the proportionate liability provisions in the Subject to the proportionate liability provisions in the CLA, where applicable, if there are several concurrent CLA, where applicable, if there are several concurrent tortfeasors to an indivisible loss, liability is unitary, each tortfeasors to an indivisible loss, liability is unitary, each being severely liable fully to the Plaintiff (see for example being severely liable fully to the Plaintiff (see for example Spiers v. Caledonian Collieries Spiers v. Caledonian Collieries (1956) 57 SR(NSW) 483, (1956) 57 SR(NSW) 483, affirmed (1957) 97 CLR 202). affirmed (1957) 97 CLR 202).

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It is for this reason that statutory tortfeasor contribution It is for this reason that statutory tortfeasor contribution was introduced, the current incarnation now found in was introduced, the current incarnation now found in section 6 of the section 6 of the Law Reform Act 1995Law Reform Act 1995. In the case of a . In the case of a divisible loss, each wrongdoer is only liable for the divisible loss, each wrongdoer is only liable for the divisible component of that loss (divisible component of that loss (Seltsam Pty Ltd v. Seltsam Pty Ltd v. GhalebGhaleb [2005] NSWCA 208). Several contributions to a [2005] NSWCA 208). Several contributions to a loss (divisible or indivisible) are to be distinguished from loss (divisible or indivisible) are to be distinguished from the causal effect of successive losses or injuries on earlier the causal effect of successive losses or injuries on earlier losses or injuries (as to which see losses or injuries (as to which see State Government State Government Assurance Commission v. OakleyAssurance Commission v. Oakley (1990) Aust Torts (1990) Aust Torts Reports, 81-003 at 67,577; Reports, 81-003 at 67,577; Lee v. Quality Bakers Australia Lee v. Quality Bakers Australia LimitedLimited [2000] QCA 285; [2000] QCA 285; Nilon v. Bizzina Nilon v. Bizzina [1998] 2 Qd R [1998] 2 Qd R 420; 420; Faulkner v. Keffalinos Faulkner v. Keffalinos (1970) 45 ALJR 1885)(1970) 45 ALJR 1885)

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• This aspect of the enquiry looks beyond material This aspect of the enquiry looks beyond material contribution of cause and subsequent effect. It seeks to contribution of cause and subsequent effect. It seeks to normalise, by the application of “common sense”, what normalise, by the application of “common sense”, what might fairly and sensibly be seen, in the eyes of the law, as might fairly and sensibly be seen, in the eyes of the law, as the cause. “Considerations of policy are relevant and the cause. “Considerations of policy are relevant and value judgments are required in order to determine matters value judgments are required in order to determine matters of causation for the purposes of attributing liability in of causation for the purposes of attributing liability in negligence” (negligence” (AMP General Insurance Ltd v. RTA (NSW) AMP General Insurance Ltd v. RTA (NSW) [2001] NSWCA 186 at [27]). Many adjectives have been [2001] NSWCA 186 at [27]). Many adjectives have been used, such as “operative cause” or “substantial” “material” used, such as “operative cause” or “substantial” “material” or “real” causeor “real” cause

Scope of liability

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A simple example of the normative enquiry A simple example of the normative enquiry resulting in a failure to establish causation is resulting in a failure to establish causation is where an experienced mine deputy had apparently where an experienced mine deputy had apparently lit a naked flame while undertaking a pre-shift lit a naked flame while undertaking a pre-shift inspection of a coal mine. The mine was not inspection of a coal mine. The mine was not adequately ventilated but the resulting fatal adequately ventilated but the resulting fatal explosion was held to be caused by his actions explosion was held to be caused by his actions rather than the lack of ventilation (rather than the lack of ventilation (Sherman v. Sherman v. Nymboida Collieries Pty LtdNymboida Collieries Pty Ltd (1963) 109 CLR (1963) 109 CLR 580)580)

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• Likewise where a deceased injured in an accident, Likewise where a deceased injured in an accident,

committed suicide following rigorous cross-examination in committed suicide following rigorous cross-examination in an application to extend the limitation period, consequent an application to extend the limitation period, consequent upon which he de-compensated afresh, the suicide was upon which he de-compensated afresh, the suicide was seen as the cause of the loss and not the original accident seen as the cause of the loss and not the original accident ((AMP General Insurance Limited v. RTAAMP General Insurance Limited v. RTA [2001] NSWCA [2001] NSWCA 186; cf 186; cf Lisle v. BriceLisle v. Brice (infra)) (infra))

• In In Postnet Pty Ltd v. Wood Postnet Pty Ltd v. Wood ([2002] ACTCA 5), the ([2002] ACTCA 5), the Plaintiff entrant in a nightclub was injured after exiting Plaintiff entrant in a nightclub was injured after exiting through a window to an awning and then to a nearby through a window to an awning and then to a nearby building from which he fell. The cause was his deliberate building from which he fell. The cause was his deliberate conduct rather than the failure to prevent access to the conduct rather than the failure to prevent access to the awning by the occupierawning by the occupier

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• Normative evaluation or value judgments can also extend Normative evaluation or value judgments can also extend

liability. In liability. In Keeys v. State of Queensland Keeys v. State of Queensland ([1998] 2 Qd R ([1998] 2 Qd R 36 at 40-41), McPherson J averted to policy expressly as a 36 at 40-41), McPherson J averted to policy expressly as a reason to extend liability - “[liability] ought not be left to reason to extend liability - “[liability] ought not be left to rest on too exact or precise an analysis of what the Plaintiff rest on too exact or precise an analysis of what the Plaintiff might or might not have done, had he been given an might or might not have done, had he been given an opportunity, which everyone accepts he ought to have had, opportunity, which everyone accepts he ought to have had, to take precautions for his own safety”to take precautions for his own safety”

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• Other examples of a normative evaluation supporting Other examples of a normative evaluation supporting

liability are where the conduct of the Plaintiff was liability are where the conduct of the Plaintiff was reasonable, leading to the loss or further loss, such as the reasonable, leading to the loss or further loss, such as the voluntary decision to retire from an appointment with voluntary decision to retire from an appointment with secured tenure because of injury (secured tenure because of injury (Medlin v. State Medlin v. State Government Insurance CommissionGovernment Insurance Commission (1995) 182 CLR 1), (1995) 182 CLR 1), the decision to seek out reasonable medical advice which the decision to seek out reasonable medical advice which negligently increases the harm (negligently increases the harm (Mahony v. J Kruschich Mahony v. J Kruschich (Demolitions) Pty Ltd (Demolitions) Pty Ltd (1985) 156 CLR 522) and the (1985) 156 CLR 522) and the decision of a police officer to continue in a high speed decision of a police officer to continue in a high speed chase (chase (Hirst v. Nominal Defendant Hirst v. Nominal Defendant [2005] 2 Qd R 133). [2005] 2 Qd R 133). The Plaintiff’s family and cultural background are relevant The Plaintiff’s family and cultural background are relevant when considering this normative enquiry (when considering this normative enquiry (Kavanagh v. Kavanagh v. Akhtar Akhtar (1998) 45 NSWLR 558 at 601)(1998) 45 NSWLR 558 at 601)

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• The normative enquiry is particularly important where The normative enquiry is particularly important where

causation has been considered in a statutory context, such causation has been considered in a statutory context, such as the as the Trade Practices Act 1974Trade Practices Act 1974 or its equivalents. In that or its equivalents. In that respect, what causal connection, if any, is needed and the respect, what causal connection, if any, is needed and the scope of the intended liability are divined from the true scope of the intended liability are divined from the true construction of the legislation and its objects (construction of the legislation and its objects (Henville v. Henville v. WalkerWalker (2001) 206 CLR 459; (2001) 206 CLR 459; Travel Compensation Fund v. Travel Compensation Fund v. Tambree Tambree (2005) 224 CLR 627)(2005) 224 CLR 627)

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• The function of subsection 11(1) appears to be to compel a The function of subsection 11(1) appears to be to compel a factual appraisal and a direct requirement to address the factual appraisal and a direct requirement to address the “normative” question in each case rather than the “normative” question in each case rather than the normative enquiry remaining buried within a reference to a normative enquiry remaining buried within a reference to a compound “common sense” appraisal. For example, see compound “common sense” appraisal. For example, see the approach of the New South Wales Court of Appeal to the approach of the New South Wales Court of Appeal to section 5D of the section 5D of the Civil Liability Act 2002 Civil Liability Act 2002 (NSW), the (NSW), the analogue of section 11, in analogue of section 11, in Graham v. Hall Graham v. Hall ([2006] ([2006] NSWCA 208 per Ipp JA)NSWCA 208 per Ipp JA)

The role of subsection 11(1)

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• This section appears to have been particularly influenced This section appears to have been particularly influenced by the writings of Professor Jane Stapleton:- for example by the writings of Professor Jane Stapleton:- for example “Lords a’leaping evidentiary gaps” (2002) 10 TLJ 276; “Lords a’leaping evidentiary gaps” (2002) 10 TLJ 276; expressly acknowledged by Ipp JA referring to “Cause-in-expressly acknowledged by Ipp JA referring to “Cause-in-Fact and the Scope of Liability for Consequences” (2003) Fact and the Scope of Liability for Consequences” (2003) 119 LQR 388 in 119 LQR 388 in Ruddock v. Taylor Ruddock v. Taylor (infra) at paragraphs (infra) at paragraphs [85]-[89][85]-[89]

• Professor Stapleton reviewed the role of “material Professor Stapleton reviewed the role of “material contribution” as espoused in contribution” as espoused in McGhee v. National Coal McGhee v. National Coal Board Board [1973] 1 WLR 1 and [1973] 1 WLR 1 and Fairchild v. Glenhaven Fairchild v. Glenhaven Funeral Services Ltd Funeral Services Ltd [2003] 1 AC 32.[2003] 1 AC 32.

Subsection 11(2) “Exceptional Cases”

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• McGhee/FairchildMcGhee/Fairchild, Professor Stapleton argues, directly , Professor Stapleton argues, directly addressed an evidentiary gap and established a rule of law addressed an evidentiary gap and established a rule of law that, in exceptional cases, a Court is allowed to substitute that, in exceptional cases, a Court is allowed to substitute orthodox proof of cause-in-fact. Professor Stapleton orthodox proof of cause-in-fact. Professor Stapleton opines that this is a preferable formulation because it is opines that this is a preferable formulation because it is more transparent than suggesting it is part of a process of more transparent than suggesting it is part of a process of robust inferences (see Stapleton “Lords a’leaping robust inferences (see Stapleton “Lords a’leaping evidentiary gaps” at 291)evidentiary gaps” at 291)

• In In McGheeMcGhee, the state of medical knowledge did not permit , the state of medical knowledge did not permit a finding that the brick dust had caused the Plaintiff’s a finding that the brick dust had caused the Plaintiff’s development of dermatitis. In development of dermatitis. In FairchildFairchild, the mesothelioma , the mesothelioma may have been caused by exposure to asbestos by a may have been caused by exposure to asbestos by a number of employers and the Plaintiff could not isolate number of employers and the Plaintiff could not isolate which. In both cases the injury was indivisible. Despite which. In both cases the injury was indivisible. Despite this imprecision, the Plaintiff succeeded in both cases this imprecision, the Plaintiff succeeded in both cases against the employeragainst the employer

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• Professor Stapleton argues that this is jumping the Professor Stapleton argues that this is jumping the evidentiary gap in the exceptional case of the evidentiary gap in the exceptional case of the limits of the best evidence available being reached limits of the best evidence available being reached - in both of those cases, medical evidence – when - in both of those cases, medical evidence – when the contribution of the possibility was establishedthe contribution of the possibility was established

• Whilst Whilst McGheeMcGhee has been approved in Australia by has been approved in Australia by the High Court (see for example the High Court (see for example Naxakis v. Naxakis v. Western General HospitalWestern General Hospital (1999) 197 CLR 269 at (1999) 197 CLR 269 at [31], [76] and [127]), Australian Courts have [31], [76] and [127]), Australian Courts have preferred to approach the issue by “inferential preferred to approach the issue by “inferential reasoning”, elevating a possibility to a probability. reasoning”, elevating a possibility to a probability.

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For example, in For example, in McGheeMcGhee, the employer’s , the employer’s omission was the only possible cause of the omission was the only possible cause of the dermatitis, there being no other possibility dermatitis, there being no other possibility of of equal valueequal value. The employer’s breach of . The employer’s breach of duty in that context was highly significant. duty in that context was highly significant. By comparison, in By comparison, in Wilshire v. Essex Area Wilshire v. Essex Area Health Authority Health Authority [1988] AC 1074, the [1988] AC 1074, the Hospital’s omission was only one of a Hospital’s omission was only one of a number of possible causes and the Plaintiff number of possible causes and the Plaintiff had not shown what part, if any, that had not shown what part, if any, that omission had playedomission had played

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• Where direct proof is not available, it is enough if the Where direct proof is not available, it is enough if the circumstances give rise to a reasonable and definite circumstances give rise to a reasonable and definite inference between competing possibilities. They must do inference between competing possibilities. They must do more than give rise to conflicting inferences of more than give rise to conflicting inferences of equalequal degrees of probability so that the choice between them is degrees of probability so that the choice between them is mere conjecture (mere conjecture (TNT Management Pty Ltd v. BrooksTNT Management Pty Ltd v. Brooks (1979) 23 ALR 345 at 349-50). As noted above, conjecture (1979) 23 ALR 345 at 349-50). As noted above, conjecture is a guess and of no legal value. is a guess and of no legal value.

• A possibility may be elevated to a probability if it can be A possibility may be elevated to a probability if it can be shown to be of greater value because of some feature, shown to be of greater value because of some feature, special to the circumstances, or a fact which makes that special to the circumstances, or a fact which makes that particular possibility more likely than not, using common particular possibility more likely than not, using common experience and expert evidence (experience and expert evidence (Dahl v. GriceDahl v. Grice [1981] VR [1981] VR 513, 522). Such a state of evidence establishes a basis for a 513, 522). Such a state of evidence establishes a basis for a legal inference and is not merely conjecture as the legal inference and is not merely conjecture as the possibilities are not of possibilities are not of equalequal value value

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• If there was only one possibility, established as a fact as a If there was only one possibility, established as a fact as a contributory possibility (and not merely a possible contributory possibility (and not merely a possible contribution as discussed above), a temporal sequence of contribution as discussed above), a temporal sequence of events and surrounding circumstances suggesting events and surrounding circumstances suggesting causation, causation, in the absence of an alternative cause being in the absence of an alternative cause being established or even suggested,established or even suggested, provides special reason to provides special reason to elevate that possibility to a probability (for example, the elevate that possibility to a probability (for example, the simple case and explanation in simple case and explanation in Barker v. SGIO (Qld) Barker v. SGIO (Qld) ((1988) 7 MVR 270 at 276 per Williams J, applying ((1988) 7 MVR 270 at 276 per Williams J, applying West v. West v. GIO (NSW)GIO (NSW) (1981) 148 CLR 62) (1981) 148 CLR 62)

• This process of inferential reasoning is well established in This process of inferential reasoning is well established in Australian law (Australian law (Girlock Sales (Pty Ltd) v. HurrellGirlock Sales (Pty Ltd) v. Hurrell (1982) (1982) 149 CLR 155; see also 149 CLR 155; see also Miller v. Livingstone Shire CouncilMiller v. Livingstone Shire Council [2002] QSC 180 at [18]; [2003] QCA 29 at [4]).[2002] QSC 180 at [18]; [2003] QCA 29 at [4]).

32

• The reference to “whether or not and why responsibility The reference to “whether or not and why responsibility should be imposed” is a reference to the “exceptional should be imposed” is a reference to the “exceptional case”, such as case”, such as Fairchild,Fairchild, where the limits of the best where the limits of the best evidence explaining causation have been reached. The evidence explaining causation have been reached. The Plaintiff could not establish which employer was Plaintiff could not establish which employer was responsible – so they all wereresponsible – so they all were

• There was no doubt about the breach of each employer but There was no doubt about the breach of each employer but the causal link between a breach by each employer and the the causal link between a breach by each employer and the condition suffered could not be shown as the Plaintiff condition suffered could not be shown as the Plaintiff could not distinguish between each of the employers. could not distinguish between each of the employers. Each breach was a possible material contributor, not just Each breach was a possible material contributor, not just possibly a material contributorpossibly a material contributor

The role of subsection 11(2)

33

• Most cases in Australia will continue to be able to Most cases in Australia will continue to be able to be resolved by orthodox inferential reasoning but be resolved by orthodox inferential reasoning but subsection 11(2) expressly authorises the jumping subsection 11(2) expressly authorises the jumping of an evidentiary gap where the possibilities are of of an evidentiary gap where the possibilities are of equal value, as occurred in equal value, as occurred in FairchildFairchild

• This section has This section has greatgreat potential where a Plaintiff potential where a Plaintiff can point to a just result if the best possible can point to a just result if the best possible evidence has been put before the Court, be that evidence has been put before the Court, be that medical, financial, engineering or otherwise. Its medical, financial, engineering or otherwise. Its precise limits are yet to be discernedprecise limits are yet to be discerned

34

• Subsection 11(3)(a) adopts the Australian legal position Subsection 11(3)(a) adopts the Australian legal position

(see for example (see for example Chappel v. HartChappel v. Hart (1998) 195 CLR 232 at (1998) 195 CLR 232 at 247, 272-3; 247, 272-3; Hallmark-Mitex Pty Ltd v. RybarczkHallmark-Mitex Pty Ltd v. Rybarczk, , unreported, QLDCA, 4 September 1998; unreported, QLDCA, 4 September 1998; Hill-Douglas v. Hill-Douglas v. Beverley Beverley [1998] QCA 435). It is the subjective response of [1998] QCA 435). It is the subjective response of that particular Plaintiff, objectively ascertained, which is that particular Plaintiff, objectively ascertained, which is relevantrelevant

The role of subsection 11(3)

35

• It is the objective ascertainment of that subjective response It is the objective ascertainment of that subjective response

which is the area of contest. The Courts had long accepted which is the area of contest. The Courts had long accepted that, the test being subjective, the Plaintiff’s ex post facto that, the test being subjective, the Plaintiff’s ex post facto statement of what he or she would have done was statement of what he or she would have done was receivable for objective appraisal but, in many receivable for objective appraisal but, in many circumstances, would be given little or no weight circumstances, would be given little or no weight ((Rosenberg v. PercivalRosenberg v. Percival (2001) 205 CLR 434 at [163], [87]- (2001) 205 CLR 434 at [163], [87]-[89], [221]; see also [89], [221]; see also Vairy v. Wyong Shire CouncilVairy v. Wyong Shire Council (2005) (2005) 223 CLR 422 at [226]; 223 CLR 422 at [226]; Chappel v. HartChappel v. Hart (infra)) (infra))

36

• The object of subsection 11(3)(b) is, self-evidently, to The object of subsection 11(3)(b) is, self-evidently, to

make the ex post facto hypothecation of the Plaintiff make the ex post facto hypothecation of the Plaintiff inadmissible, and not just a matter of weight. The inadmissible, and not just a matter of weight. The subjective response of the Plaintiff may still be proved by subjective response of the Plaintiff may still be proved by propensity evidence, (inadmissible on breach but propensity evidence, (inadmissible on breach but admissible on causation; admissible on causation; Hirbar v. WellsHirbar v. Wells (1995) 64 SASR (1995) 64 SASR 129 at 140), commercial intent (129 at 140), commercial intent (Hanflex Pty Ltd v. N S Hanflex Pty Ltd v. N S Hope & Associates Hope & Associates [1990] 2 Qd R 218), contemporaneous [1990] 2 Qd R 218), contemporaneous evidence of likely response (see for example evidence of likely response (see for example Commissioner of Main Road v. Jones Commissioner of Main Road v. Jones (2005) ALJR 1104 (2005) ALJR 1104 at [10]; at [10]; Enwright v. Coolum Resort Pty LtdEnwright v. Coolum Resort Pty Ltd [2002] QSC [2002] QSC 394) and even personality traits such as being cautious or, 394) and even personality traits such as being cautious or, alternatively, being reckless and anti-social (alternatively, being reckless and anti-social (Scarf v. Scarf v. Queensland Queensland [1998] QSC 233).[1998] QSC 233).

37

• Subsection 11(3)(b) may be seen to be a radical change Subsection 11(3)(b) may be seen to be a radical change

but, in view of the Court’s reluctance to act on such but, in view of the Court’s reluctance to act on such evidence, its impact may not be as a great as first thought. evidence, its impact may not be as a great as first thought. Note that an admission by the Plaintiff that the act or Note that an admission by the Plaintiff that the act or omission would not have made a difference to the course omission would not have made a difference to the course of conduct adopted, if against interest, is admissibleof conduct adopted, if against interest, is admissible

38

• The primary object of subsection 11(4) appears to give The primary object of subsection 11(4) appears to give express statutory imprimatur to the normative express statutory imprimatur to the normative considerations outlined above to either restrict liability or, considerations outlined above to either restrict liability or, as as Keeys Keeys shows, to impose it. This supports the object in shows, to impose it. This supports the object in subsection 11(1)(b) to expressly require the normative subsection 11(1)(b) to expressly require the normative considerations to be addressedconsiderations to be addressed

The role of subsection 11(4)

39

• Section 12 emphasises two main points:-Section 12 emphasises two main points:-• The Plaintiff always bears the onus of any fact relevant The Plaintiff always bears the onus of any fact relevant

to the issue of causation;to the issue of causation;• That onus is always on the balance of probabilitiesThat onus is always on the balance of probabilities

Section 12

40

• In In Betts v. WhittingsloweBetts v. Whittingslowe (1945) 71 CLR 637 at (1945) 71 CLR 637 at 648-649, Dixon J observed:-648-649, Dixon J observed:-““The breach of duty, coupled with an accident of The breach of duty, coupled with an accident of the kind that might thereby be caused, is enough to the kind that might thereby be caused, is enough to justify an inference, justify an inference, in the absence of any in the absence of any sufficient reason to the contrarysufficient reason to the contrary, that, in fact, the , that, in fact, the incident did not occur owing to the act or omission incident did not occur owing to the act or omission … In the circumstances of this case, that … In the circumstances of this case, that proposition is enough. For, in my opinion, proposition is enough. For, in my opinion, the the facts warrant no other inference inconsistent with facts warrant no other inference inconsistent with liability on the part of the Defendantliability on the part of the Defendant” (underlining ” (underlining added)added)

The Betts principle

41

• Concern has been expressed that this statement Concern has been expressed that this statement has been converted to a statement reversing the has been converted to a statement reversing the onus of proof. The Ipp report viewed some onus of proof. The Ipp report viewed some comments in the High Court as tending in this comments in the High Court as tending in this direction (specifically the reasoning of Gaudron J direction (specifically the reasoning of Gaudron J in in Bennett v. Minister for Community Welfare Bennett v. Minister for Community Welfare (1992) 176 CLR 408 at 420-22; see also McHugh (1992) 176 CLR 408 at 420-22; see also McHugh J in J in Chappel v. HartChappel v. Hart (1998) 195 CLR 232 at [34]; (1998) 195 CLR 232 at [34]; Gaudron J in Gaudron J in Naxakis v. Western General Hospital Naxakis v. Western General Hospital (1999) 197 CLR 269 at [31]). For example, in (1999) 197 CLR 269 at [31]). For example, in NaxakisNaxakis, Gaudron J stated:-, Gaudron J stated:-

42

““In that situation the trier of fact – in this In that situation the trier of fact – in this case, a jury – is entitled to conclude that the case, a jury – is entitled to conclude that the act or omission caused the injury in act or omission caused the injury in question unless the Defendant establishes question unless the Defendant establishes that the conduct had no effect at all or that that the conduct had no effect at all or that the risk would eventuate and result in the the risk would eventuate and result in the damage in question in any event”. The Ipp damage in question in any event”. The Ipp report recommended a statutory report recommended a statutory enshrinement that Plaintiffs always bear the enshrinement that Plaintiffs always bear the onus of proof of causation on the balance of onus of proof of causation on the balance of probabilities:- at [7.36]probabilities:- at [7.36]

43

• This view of the statements in the High Court considering This view of the statements in the High Court considering the the BettsBetts principle has been rejected in Queensland principle has been rejected in Queensland ((Batiste v. Queensland Batiste v. Queensland [2002] 2 Qd R 119) in New South [2002] 2 Qd R 119) in New South Wales (Wales (Seltsam Pty Ltd v. McGuinnessSeltsam Pty Ltd v. McGuinness (2000) 49 NSWLR (2000) 49 NSWLR 262; 262; T C v. State of New South Wales T C v. State of New South Wales [2001] NSWCA [2001] NSWCA 380; see the review of the authorities by Ipp JA in 380; see the review of the authorities by Ipp JA in Flounders v. MillarFlounders v. Millar [2007] NSWCA 238 at [22]-[39]) and [2007] NSWCA 238 at [22]-[39]) and in Victoria (in Victoria (Shire of Wakool v. WaltersShire of Wakool v. Walters [2005] VSCA 216 [2005] VSCA 216 at [48]) but at [48]) but acceptedaccepted in Western Australia ( in Western Australia (Amaca Pty Ltd Amaca Pty Ltd v. Hannellv. Hannell [2007] WASCA 158 at [395] [2007] WASCA 158 at [395]

44

• It is for this reason that the legislature has intervened. It It is for this reason that the legislature has intervened. It does not change the law in Queenslanddoes not change the law in Queensland

• The Queensland (and, with respect, the better,) view is that The Queensland (and, with respect, the better,) view is that the the BettsBetts principle refers to a shifting principle refers to a shifting evidentialevidential onus. If a onus. If a breach is established consisting of an omission to take a breach is established consisting of an omission to take a proper precaution, in determining whether the Plaintiff proper precaution, in determining whether the Plaintiff would have acted in such a way as to avoid the risk (the would have acted in such a way as to avoid the risk (the negative aspect of causation), it is open to the Court to negative aspect of causation), it is open to the Court to infer that the Plaintiff would have so acted in the absence infer that the Plaintiff would have so acted in the absence of any sufficient reason to the contraryof any sufficient reason to the contrary

45

• All members of the Court of Appeal in All members of the Court of Appeal in BatisteBatiste approached approached

the question in this way. The majority viewed the question in this way. The majority viewed BettsBetts as as authorising the drawing of an inference in the context of authorising the drawing of an inference in the context of determining, as a question of fact, whether there are any determining, as a question of fact, whether there are any other competing inferences of equal or greater probability. other competing inferences of equal or greater probability. Their Honours were of the view that the real question was Their Honours were of the view that the real question was whether the trial Judge had averted to competing causes whether the trial Judge had averted to competing causes and formed the view that the conclusion reached by the and formed the view that the conclusion reached by the trial Judge was open. Muir J, who dissented, on the other trial Judge was open. Muir J, who dissented, on the other hand, was of the view that “the trial Judge had erred by hand, was of the view that “the trial Judge had erred by treating the treating the BettsBetts principle as one which ignored the need principle as one which ignored the need to look for the existence of any reason which would negate to look for the existence of any reason which would negate the inference which [the trial Judge] was entitled, but not the inference which [the trial Judge] was entitled, but not obliged, to draw” (at paragraph [39])obliged, to draw” (at paragraph [39])

46

• This emphasises the need in such a case for evidence This emphasises the need in such a case for evidence

negating the inference, or competing hypotheses, to be negating the inference, or competing hypotheses, to be placed before the Court. That evidence may take many placed before the Court. That evidence may take many forms in the circumstances of the case, similar to that forms in the circumstances of the case, similar to that involved in evaluating competing established possibilities involved in evaluating competing established possibilities – for example, commercial intent, disposition, previous – for example, commercial intent, disposition, previous conduct, and contemporaneous action. The problem is conduct, and contemporaneous action. The problem is particularly difficult where causation turns on what a Third particularly difficult where causation turns on what a Third Party would, or would not have, done. In such Party would, or would not have, done. In such circumstances, a Court may be slow to draw such an circumstances, a Court may be slow to draw such an inference but it may properly be drawn where the inference but it may properly be drawn where the behaviour of the Third Party is objectively likely, for behaviour of the Third Party is objectively likely, for example, where the Third Party’s self interest points at a example, where the Third Party’s self interest points at a particular direction (per Keane JA in particular direction (per Keane JA in Gold Ribbon Gold Ribbon (Accountants) Pty Ltd(Accountants) Pty Ltd (In Liq) v. Sheers(In Liq) v. Sheers [2006] QCA 335 [2006] QCA 335 at [281] and [284])at [281] and [284])

47

• Concern also exists that there has been a Concern also exists that there has been a weakening of the civil onus in cases of loss of a weakening of the civil onus in cases of loss of a chance of a benefit or avoiding a detrimentchance of a benefit or avoiding a detriment

• The distinction must be maintained between The distinction must be maintained between identifying a species of “damage”, being the loss identifying a species of “damage”, being the loss of the chance, which is recoverable if caused by a of the chance, which is recoverable if caused by a breach, on the probabilities, and the assessment of breach, on the probabilities, and the assessment of that lost chance as “damages”that lost chance as “damages”

Loss of a chance

48

• It is submitted the authorities establish the following:-It is submitted the authorities establish the following:-• In negligence, the tort is not complete until “damage” In negligence, the tort is not complete until “damage” has been suffered (has been suffered (Rankin v. Garton Sons and Co Ltd Rankin v. Garton Sons and Co Ltd [1979] 2 All ER 1185 at 1189). “Damage” only [1979] 2 All ER 1185 at 1189). “Damage” only accrues when it is beyond what can be regarded as accrues when it is beyond what can be regarded as negligible (negligible (Martindale v. BurrowsMartindale v. Burrows [1997] 1 Qd R 243 [1997] 1 Qd R 243 at 246 per Derrington J; at 246 per Derrington J; Orica Ltd v. CGU Insurance Orica Ltd v. CGU Insurance LtdLtd (2003) 59 NSWLR 14 at page 22 “sufficiently (2003) 59 NSWLR 14 at page 22 “sufficiently material”). In contract, a breach if actionable without material”). In contract, a breach if actionable without loss (See the authorities collected by Lindgren J inloss (See the authorities collected by Lindgren J in Cell Tech Communications Pty Ltd v. Nokia Mobile Cell Tech Communications Pty Ltd v. Nokia Mobile Phones (UK) Ltd Phones (UK) Ltd (1996) 136 ALR 733 at 750) but (1996) 136 ALR 733 at 750) but recovery of substantive, and not nominal damages, recovery of substantive, and not nominal damages, requires proof of a loss of substancerequires proof of a loss of substance

49

• That a chance of avoiding a detriment or gaining an That a chance of avoiding a detriment or gaining an advantage has been lost must be established by the advantage has been lost must be established by the Plaintiff on the probabilities (Plaintiff on the probabilities (Green v. Chenoweth Green v. Chenoweth [1998] 2 Qd R 572; see also [1998] 2 Qd R 572; see also Hill-Douglas v. Beverley Hill-Douglas v. Beverley (unreported, QLDCA, 18 December 1998); see also (unreported, QLDCA, 18 December 1998); see also Gold Ribbon Gold Ribbon (infra) at [284]). This includes the (infra) at [284]). This includes the chance of a better outcome (chance of a better outcome (Rufo v. Hosking Rufo v. Hosking (2004) 61 (2004) 61 NSWLR 678, especially at paragraph [40]; NSWLR 678, especially at paragraph [40]; Gavalis v. Gavalis v. SinghSingh [2001] 3 VR 404) [2001] 3 VR 404)

• The Plaintiff must establish, on the probabilities, the The Plaintiff must establish, on the probabilities, the chance was lost as a result of the alleged breach (chance was lost as a result of the alleged breach (Rufo Rufo at paragraphs [40] and [41]; at paragraphs [40] and [41]; Green v. Chenoweth Green v. Chenoweth (infra); (infra); Hill-Douglas v. Beverley Hill-Douglas v. Beverley (infra))(infra))

50

If such a chance is established, on the probabilities, then it If such a chance is established, on the probabilities, then it is damage sufficient for a claim in contract, tort or is damage sufficient for a claim in contract, tort or (depending on the statute) on a statutory basis, such as the (depending on the statute) on a statutory basis, such as the TPA (TPA (Sellars v. Adelaide Petroleum NL Sellars v. Adelaide Petroleum NL (1994) 179 CLR (1994) 179 CLR 332, applying 332, applying Malec v. JC Hutton Pty LtdMalec v. JC Hutton Pty Ltd (1990) 169 CLR (1990) 169 CLR 638 to the assessment of damages under the TPA), if the 638 to the assessment of damages under the TPA), if the lost chance is a chance “of substance”, or, of “some value lost chance is a chance “of substance”, or, of “some value not being negligible”, rather than “speculative” (not being negligible”, rather than “speculative” (Bradley v. Bradley v. Stanek Stanek (unreported, QLDCA, 18 December 1998) at [10]-(unreported, QLDCA, 18 December 1998) at [10]-[11] per McPherson JA, with whom McKenzie J agreed; [11] per McPherson JA, with whom McKenzie J agreed; see also see also RufoRufo (infra) at [3] and [4]; (infra) at [3] and [4]; CES v. Super ClinicsCES v. Super Clinics (1995) 38 NSWLR 47 at page 57 per Kirby P “a loss of (1995) 38 NSWLR 47 at page 57 per Kirby P “a loss of that opportunity itself being of value to the Appellants that opportunity itself being of value to the Appellants because of the possibility of her availing herself of the because of the possibility of her availing herself of the opportunity … the Appellants would have to establish that opportunity … the Appellants would have to establish that loss or damage had been sustained by deprivation of the loss or damage had been sustained by deprivation of the opportunity. However that would be done by simply opportunity. However that would be done by simply demonstrating that the opportunity which was lost by the demonstrating that the opportunity which was lost by the Respondent’s negligence was of some value, Respondent’s negligence was of some value, but not but not negligible value,negligible value, to the Appellants” (underlining added) to the Appellants” (underlining added)

51

• The evaluation or assessment of the lost chance for The evaluation or assessment of the lost chance for damages (not damage) is “ascertained by reference to damages (not damage) is “ascertained by reference to the degree of probabilities or possibilities” (the degree of probabilities or possibilities” (Sellars Sellars (infra) at 355; (infra) at 355; Bradley v. Stanek Bradley v. Stanek at [11])at [11])

• The loss of chance approach might erroneously conflate The loss of chance approach might erroneously conflate establishing the existence of the chance, on the establishing the existence of the chance, on the probabilities, as “damage” with the assessment of the probabilities, as “damage” with the assessment of the chance as “damages”, especially where the chance claimed chance as “damages”, especially where the chance claimed is more than 50% (cf is more than 50% (cf Naxakis Naxakis (infra) at [312]-[313] per (infra) at [312]-[313] per Callinan J; Callinan J; New South Wales v. BurtonNew South Wales v. Burton [2006] NSWCA 12 [2006] NSWCA 12 at [25] and [27], [80]; at [25] and [27], [80]; Halverson v. DoblerHalverson v. Dobler [2006] NSWSC [2006] NSWSC 1307 at [248]). For example, in 1307 at [248]). For example, in HalversonHalverson, it was said:, it was said:“… “… insofar as ‘loss of a chance’ presently has a place in insofar as ‘loss of a chance’ presently has a place in personal injury cases on the current state of the law in New personal injury cases on the current state of the law in New South Wales, South Wales, it is in cases where the Plaintiff cannot prove it is in cases where the Plaintiff cannot prove causationcausation on the balance of probabilities, and, accordingly, on the balance of probabilities, and, accordingly, the lost chance is less than 50%” (underlining added)the lost chance is less than 50%” (underlining added)

52

• This does not authorise the assessment of damages This does not authorise the assessment of damages

if the Plaintiff cannot prove causation on the if the Plaintiff cannot prove causation on the balance of probabilities. Rather, the distinction is balance of probabilities. Rather, the distinction is drawn between causation of the whole loss on the drawn between causation of the whole loss on the one hand and a case framed by establishing, on the one hand and a case framed by establishing, on the probabilities, a lost chance of less than 50%, on probabilities, a lost chance of less than 50%, on the other. According to the civil onus, if it the other. According to the civil onus, if it established that the chance is more than 50%, established that the chance is more than 50%, causation is proved in relation to the wholecausation is proved in relation to the whole

• The role of section 12 in this respect is to mandate The role of section 12 in this respect is to mandate that the civil onus, the balance of probabilities, has that the civil onus, the balance of probabilities, has not been diluted.not been diluted.