Date: Thu, 15 May 2008 06:38

From: Neil Foster

Subject: High Court touches on causation

Dear Colleagues,

I post on behalf of Harold Luntz:

****

In Roads and Traffic Authority v Royal [2008] HCA 19 (14 May 2008) the High Court, by 4:1, allowed an appeal by the Roads and Traffic Authority from Royal v Smurthwaite (2007) 47 MVR 401 (NSW CA). As Kirby J said in his dissenting judgment,

39                     The spectacle of five Justices of this Court labouring over highway plans and photographs and sifting through four appeal books in relation to such a question would be bound to cause surprise. The record describes the 12 day trial of these proceedings in the District Court of New South Wales, and the two day hearing in the Court of Appeal. What is, and is not, for legal purposes, a material cause of a motor vehicle collision is a question of fact. Ordinarily, it gives rise to no principle of law, binding on lower courts and future parties. On the face of things, it concerns only the immediate parties and the outcome of their dispute.

40                     There is not, in this case, even the residual human interest as to whether a seriously injured plaintiff will maintain, or lose, a verdict recovered in earlier proceedings. In this appeal, the plaintiff's recovery (reduced by one third for his contributory negligence) is unchallenged. The Court of Appeal was unanimous that the assessment of contributory negligence should not be disturbed, and that issue has not concerned this Court.

For what it is worth, the majority (in a joint judgment by Gummow, Hayne and Heydon JJ and a separate judgment by Kiefel J) held that the majority in the NSW CA should not have found that the RTA's negligence (in designing an intersection or failing to modify it when it became a black spot) contributed to the collision between two motorists. The fault in the intersection was that the view of oncoming traffic by the motorist who stopped at the stop sign might have been obscured by other traffic, but in this case the view was not obscured.

Kirby J sets out the established principles of causation (without elaboration because he says they were not contested) in seven propositions, with much reference to Jane Stapleton. He says that he realises of course, the imperfections, inefficiencies and paradoxes involved in treating the law of torts as a guardian of communal fairness and as a stimulus to accident prevention, citing John Smillie's recent TLJ article, but adds that so long as the law of torts survives, its role in distributive justice and in promoting safety should be maintained rather than denied. He thinks holding the RTA liable to contribute would bring home to the Authority, who alone had power to do something about the intersection, that it shouldn't have waited for more deaths before reconstructing the intersection (as it did after this collision).

Kiefel J goes out of her way to show that increase of risk alone is not enough to prove causation and to explain the meaning of Dixon's dictum in Betts v Whittingslowe.

***

NF comments: See paras [81] ff for Kirby J's discussion of the principles of causation, and especially [94] where his Honour says that Australian law does not (yet?) recognise the view in Fairchild and Barker that in some cases increase of risk alone is sufficient for causation.

Those following the dispute within the NSW Court of Appeal over this issue (see North Sydney Council v Binks (2007) 48 MVR 451, adopting an "increase in risk = causation" approach, and Flounders v Millar (2007) 49 MVR 53 rejecting it) may like to note that Kiefel J weighs in on the side of Flounders - see [142] n 138, with [144]-[147]. But since the other members of the majority do not discuss the point we still await a fully reasoned decision of the High Court on the point.

regards
Neil F

Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

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