Dear Colleagues;
Those interested in causation issues might find a useful illustration of a principle in the decision of the NSWCA in Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 (30 Sept 2011) http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=154921. I should stress that it is not a tort case, it is a criminal prosecution for a workplace safety offence. But it may provide a useful fact situation.
The company SDA designed a heavy industrial gate. They did not properly design a stop mechanism to prevent the gate from falling over when manually opened, and a friend of a worker was killed when just this happened. After the gate had been constructed (but before the incident) someone did notice the absence of a stop mechanism, and a third company was engaged to fix the problem. They did so incompetently. The question was whether the initial designers, SDA, remained responsible for the death (clearly those who attempted the careless fix were also possibly guilty.) The CA held that the Industrial Court had correctly applied causation principles to find SDA guilty.
As Sackville JA put it at [117]:

"SDA's design omission created the risk that, if the gate was designed in accordance with SDA's specifications (as it was), it would present a risk to health and safety. This is not a case where a design failure created a negligible risk or a risk of minor injury and then being converted by the deliberate act by a third party into a much more serious risk. Nor is it a case where a design omission created an opportunity for a third party to create quite a different risk to health and safety. The risk to health and safety that existed on 14 October 2003 was precisely the risk that was created by SDA's design failure. The fact that a third party had an opportunity to eliminate that risk but did not do so successfully means that someone else also contributed to the existence of the risk. That does not mean that the Industrial Court was precluded from finding that SDA's design failure substantially contributed to the risk."

There is also discussion of the need to take into account the purposes of the legislative scheme where causation arises under a statute.
Regards
Neil


Neil Foster
Senior Lecturer
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

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