Date: Thu, 15 May 2008 13:50

From: Robert Stevens

Subject: 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?

R

Quoting DAVID CHEIFETZ:

On the causation issues, Kirby J replicates the logic of the majority reasons of the House of Lords in Chester v Afashar, with one difference: breach of an important duty ought to be and therefore will be punished in order to increase the likelihood that the breach will not occur in the future. However, unlike the House of Lords, Kirby J seems to allow the defendant the opportunity to establish the breach necessarily did not make a difference (see para 116).

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