Category Archives: Causation

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 | 10 November 2009

ON 10 NOVEMBER 2009, the High Court of Australia delivered Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/48.html

Early on New Years day in 2003, Mr Moubarak and Mr Bou Jajem were injured on the premises of Adeels Palace Restaurant in the Sydney suburb of Punchbowl. The men were shot by another patron who had earlier been involved in a dispute on the dance floor, left the premises and returned with a gun.

The men sued for damages, alleging that their injuries were the result of Adeels’ negligence in failing to provide any or any sufficient security on the night of the incident. The men succeeded before the District Court of NSW and NSW Court of Appeal. However, the High Court allowed Adeels’ appeal and set aside the earlier decisions.

The High Court held that the evidence did not establish that action could have been taken to prevent the violent conduct occurring. The court held that the evidence only went as far as showing that the provision of more security might have prevented the damage but did establish, on the balance of probabilities, that it would have prevented the damage.

The court held that it was unnecessary to determine whether or not there was a breach of duty of care because the men had not established that Adeels’s failure to provide any or any sufficient security was a necessary cause of their damage as required under s5D of the Civil Liability Act 2002 (NSW).

Lawyers

1300 00 2088

Chappel v Hart [1998] HCA 55 | 2 September 1998

ON 2 SEPTEMBER 1998, the High Court of Australia delivered Chappel v Hart [1998] HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344 (2 September 1998).

http://www.austlii.edu.au/au/cases/cth/HCA/1998/55.html

A procedure to repair a perforation of the oesophagus carried a small inherent risk of infection which could damage the plaintiff’s laryngeal nerve and voice. The patient, who suffered an infection, was not warned of these risks. It was found that had the patient been informed of the risks he would have deferred the procedure and had it performed by a more experienced surgeon.

Using the “common sense” test of causation of March v Stramare (E & M H) Pty Ltd, the High Court held that the patient’s harm was caused by the doctor’s failure to warn of risk rather than a failure with the actual care provided.

The court applied a subjective approach for determining what the patient done had the doctor not been negligent in failing to warn him of the risk.

Per Gaudron J at [32]:

“Furthermore, a defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action. Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. The enquiry as to what the plaintiff would have done if warned is necessarily hypothetical. But if the evidence suggests that the acts of omissions of the defendant would have made no difference to the plaintiff’s course of action, the defendant has not caused the harm which the plaintiff has suffered.”

Per McHugh J at [23]:

“The question of causation is not resolved by philosophical or scientific theories of causation”

The Civil Liability Act 2002 has modified the common law position with regards to the common sense test and subjective approach to causation.


 

<a

Lawyers

Sydney, Australia

1300 00 2088

Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257

ON 6 AUGUST 2014, the NSW Court of Appeal delivered Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257.

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=173201

The appellant brought proceedings in the NSW District Court seeking damages for gunshot injuries received when his vehicle collided with an unidentified vehicle and shots were fired from that vehicle before it was driven away.

Kearns DCJ of the District Court entered a verdict for the respondent, finding that the appellant’s injuries were not caused by the fault of a driver of a motor vehicle in the use or operation of a motor vehicle within the meaning of s3A of the Motor Accidents Compensation Act 1999 (NSW).

The Court of Appeal dismissed an appeal against the District Court decision, concluding that although the injuries were the fault of the driver of the unidentified vehicle, and although the injuries were received in the use or operation of a motor vehicle, the proximate cause of the appellants injuries was the gunfire as opposed to the driving of the unidentified vehicle.

Lawyers

1300 00 2088

Bunnings Group Ltd v Borg [2014] NSWCA 240

ON 28 JULY 2014, the NSW Court of Appeal delivered Bunnings Group Ltd v Borg [2014] NSWCA 240.

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172896

The Court of Appeal allowed an appeal against a District Court decision awarding damages to customer of Bunnings Dural who was injured when some timber sleepers fell off a forklift onto his foot.

The Court of Appeal found that there was insufficient factual findings to come to the conclusion of negligence: there was conflicting evidence of the tilting of the forklift and no evidence about effect of warning or what would have occurred if there were more staff.

The Court of Appeal found that there were insufficient findings for it to make a substituted judgment.

The Court of Appeal set aside the verdict and ordered a retrial on the grounds that the trial judge failed to make clear findings about breach and causation as required under the Civil Liability Act 2002, ss 5B, 5C, 5D and 5E.

Lawyers

1300 00 2088

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48

ON 10 NOVEMBER 2009, the High Court of Australia delivered Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/48.html

Early on New Years day in 2003, Mr Moubarak and Mr Bou Jajem were injured on the premises of Adeels Palace Restaurant in the Sydney suburb of Punchbowl. The men were shot by another patron who had earlier been involved in a dispute on the dance floor, left the premises and returned with a gun.

The men sued for damages, alleging that their injuries were the result of Adeels’ negligence in failing to provide any or any sufficient security on the night of the incident. The men succeeded before the District Court of NSW and NSW Court of Appeal. However, the High Court allowed Adeels’ appeal and set aside the earlier decisions.

The High Court held that the evidence did not establish that action could have been taken to prevent the violent conduct occurring. The court held that the evidence only went as far as showing that the provision of more security might have prevented the damage but did establish, on the balance of probabilities, that it would have prevented the damage.

The court held that it was unnecessary to determine whether or not there was a breach of duty of care because the men had not established that Adeels’s failure to provide any or any sufficient security was a necessary cause of their damage as required under s5D of the Civil Liability Act 2002 (NSW).
Lawyers

1300 00 2088

Chappel v Hart [1998] HCA 55

ON 2 SEPTEMBER 1998, the High Court of Australia delivered Chappel v Hart [1998] HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344 (2 September 1998).

http://www.austlii.edu.au/au/cases/cth/HCA/1998/55.html

A procedure to repair a perforation of the oesophagus carried a small inherent risk of infection which could damage the plaintiff’s laryngeal nerve and voice. The patient was not warned of these risks. It was found that had the patient been informed of the risks he would have deferred the procedure and had it performed by a more experienced surgeon.

Using the “common sense” test of causation of March v Stramare (E & M H) Pty Ltd, the High Court held that the patient’s harm was caused by the doctor’s failure to warn of risk rather than a failure to do with the actual care provided.

The court also applied a subjective approach for determining what the patient done had the doctor not been negligent in failing to warn him of the risk.

Per Gaudron J at [32]:

 

“Furthermore, a defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action. Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. The enquiry as to what the plaintiff would have done if warned is necessarily hypothetical. But if the evidence suggests that the acts of omissions of the defendant would have made no difference to the plaintiff’s course of action, the defendant has not caused the harm which the plaintiff has suffered.”

Per McHugh J at [23]:

“The question of causation is not resolved by philosophical or scientific theories of causation”

Lawyers

1300 00 2088

Medlin v State Government Insurance Commission [1995] HCA 5

ON THIS DAY in 1995, the High Court of Australia delivered Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180 (1995) Aust Torts Reports 81-322 (16 February 1995).

http://www.austlii.edu.au/au/cases/cth/HCA/1995/5.html

Lawyers

Sydney, Australia

1300 00 2088

Baker v Willoughby [1969] UKHL 8

Baker v Willoughby [1969] UKHL 8  [1969] 3 All ER 1528.

http://www.bailii.org/uk/cases/UKHL/1969/8.html

Lawyers

Sydney, Australia

1300 00 2088