Date: Thu, 15 May 2008 14:35

From: David Cheifetz

Subject: High Court touches on causation

Robert,

Characterizing the harm as "co-incidental" - if that characterization is relevant to the actionability of the impugned conduct, it determines the answer to the inquiry of whether the conduct is actionable, no?

Why is the harm "co-incidental" when Ms. Chester might still have had the bad result from the operation properly performed even if she had the operation on a later day? The risk might have been small, but it was nonetheless relevant risk.

Perhaps we're at cross-purposes. My "made no difference" relates to the consequence of the performance of the operation. Your "made no difference" relates to what she would have done if properly warned and you seem to be stopping at the "she would have had the operation later". But I think it's not correct to stop there. I think, at the factual causation level, we have to look at the consequences of what she would next have done. If you say we're not going to, you're making an "ought" level - scope of liability - decision, not a factual causation inquiry decision.

You're right, though, about Kirby J's analysis (even if we disagree on whether it corresponds with the majority in Chester). In more detail,

1. RTA breached an important statutory and common law duty

2. It is important that the RTA be encouraged to fulfil, and reminded of its obligation to fulfil, such duty

3. Where there is a breach there should sanctions for that breach

4. Even conceding that there was, on the evidence, no actual connection between the breach and the injury, propositions (2) and (3) still govern

5. So the RTA should be held liable unless

6. the evidence shows that the breach probably would not have made a factual difference.

Another way to describe the steps in Kirby J's analysis is:

1. the design of the intersection was bad, so it created problem "X" for drivers and the RTA was aware of that problem

2. the trial judge found that problem X had nothing to do with this accident, so dismissed the action against RTA

3. RTA had a statutory and common law duty to fix the problem

4. RTA should have fixed the intersection, before the accident, on account of the problem

5. if RTA had fixed the intersection before the incident, the accident possibly? probably? necessarily? would not have happened - (Kirby J I think assumes at least probably, but perhaps not, and possibly seems enough to satisfy the 'ought' basis of this analysis. 'Ought' allows lords and ladies to leap, etc)

6. municipal bodies ought to be encouraged to do what is right

7. that encouragement requires that the municipality be held liable where it breached a duty and where compliance might have prevented the harm (see particularly para. 114)

8. thus RTA should be and will be held liable

9. at least in the absence of evidence that fixing the design necessarily would not have made a difference in this case. (I read para. 116 of Kirby J's reasons, particularly the last sentence to necessarily require this exception. Note Kirby J's "the question is whether the accident was caused only by the driver".)

As to 5 and 9, I appreciate that a finding of probability does not eliminate possibility; however, requiring certainty (whatever that means in a particular case) would be tantamount to imposing "absolute liability" and Kirby J, in para 116, denied that absolute liability would be imposed.

However Kiefel J is right that it would be "something approaching absolute liability" (para. 145) at least in practice if not in theory.

To me, Kirby J's analysis is the equivalent of what the majority did in Chester.

I've already written too much (am writing too much?, elsewhere) about the meaningless of "material contribution". I'm not going there, here.

Regards,
David

----- Original Message ----
From: Robert Stevens
To: DAVID CHEIFETZ  
Sent: Thursday, May 15, 2008 8:50:24 AM 
Subject: Re: ODG: High Court touches on causation

David,

I don't think Chester v Afshar establishes that liability will be imposed even where the breach has made no difference. If the patient in Chester v Afshar had been warned, she would have had the operation on another day. On that occasion the overwhelming probability was that all would have been well. It was rightly conceded by counsel that the but-for test was satisfied.

Chester (primarily) concerned the quite different problem of whether coincidental harm was actionable. Although the harm would not have occurred but for the defendant's breach, the probability of the harm was not increased by the failure to warn (i.e. it was just as likely that the operation would go wrong whatever day it took place). Some consider that recovery for the injuries is unobjectionable (e.g. J Stapleton 'Occam's Razor Reveals an Orthodox Basis for Chester v Afshar' (2006) 122 LQR 42).

The problem with Kirby J's approach is the slippery use of 'material contribution' (para [85]). The foundation for this is said to be Bonnington Castings [1956] AC 613. But that case concerned an injury where the exposure to dust made the plaintiff's injury progressively worse. That wasn't the sort of problem the High Court of Australia in RTA v Royal were faced with. Here the injury was digital not analogue. Either the defendant's negligence caused the injury or it didn't. It didn't make it worse. So, the majority were right I think to straightforwardly apply the but-for test (although I have not gone back and read the earlier CA decision and I am not going to think long and hard about whether they were right on the facts).

Kirby J's attempts to justify his decision on the basis that it will deter local authorities from behaving negligently in the future just doesn't work. If we really accepted this sort of reasoning, why are we bothering with causal rules at all? If someone has been careless, and someone else has suffered an injury, why not just let the latter claim against the former?

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