Dear Colleagues;

For those who are following causation cases, Powney v Kerang and District Health [2014] VSCA 221 (11 September 2014) http://www.austlii.edu.au/au/cases/vic/VSCA/2014/221.html  is very interesting. The Victorian Court of Appeal address the issue of how to interpret the “Fairchild clause” in the Australian Civil Liability Acts (if I can use the generic term) dealing with causation. When the CLA’s were enacted following the Ipp Report, as well as adopting a more explicit approach to causation generally (following some of Professor Stapleton’s work), the legislation often included a separate clause which seems to have been designed to cater for the possibility that Fairchild-type “increased risk” causation would be recognised in Australia. In Victoria this was represented by s 51(2) of the Wrongs Act 1958 (Vic):

 (2)     In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

The NSW equivalent is s 5D(2) of the CLA 2002 (NSW), virtually identical except that it uses the word “exceptional” instead of “appropriate”. In this Victorian decision the plaintiff’s counsel, realising he didn’t have a very strong “but for” case on causation, argued that he ought to have been able to leave to the jury the question whether this was an “appropriate” case for s 51(2) to operate to create causation even in the absence of “but for”.

Sensibly the trial judge declined the invitation to leave the issue to the jury, and the CA has now said that he was right to do so. Whatever s 51(2) means, the determination of when a case is “appropriate” for the clause to be applicable is an issue of law, not a factual question, and not to be left to the jury in that form. In general the Vic CA here, in my view, gives a good review of the background and summary of the present law on causation in Australia. Fairchild has not been adopted here; while it has never formally been ruled on by the High Court, passing comments in various decisions seem pretty clear that the “but for” test for causation, which includes “material contribution to harm” where there is more than one cause, is the appropriate test, and a Fairchild “material increase in risk” criterion has not been accepted (and in my view is unlikely to be accepted in the future.) Hence in my view clauses like s 51(2), and NSW s 5D(2), which were passed “for abundant caution” in case the law should change, should generally be read as not operative and would be better repealed as only causing confusion.

Long term ODG colleagues will know that I can’t pass up the opportunity to say that these clauses are not, contrary to suggestions made here [due to the confusing comments, in my view, of the Ipp Committee], necessary to deal with “material contribution to cause” claims like Bonnington Castings. Material contribution as evidenced in Bonnington is a perfectly straightforward principle that an event can be caused by more than one preceding event, and that anyone responsible in way for one those preceding events (in the absence of which the harm would not have occurred), which is not de minimis, can he held accountable at common law. In Bonnington cases “but for” causation is satisfied; they are not an exception to “but for”. See paras [59]-[60] here where the Vic CA correctly point out that Bonnington has been accepted as perfectly orthodox in Australia, but Fairchild has not. On the other hand I have to concede that dicta can be found, here and in the High Court, disagreeing with me. But in my view they stem from people not reading Bonnington carefully enough!

Regards

Neil