The burden of proving causation in claims for contributory negligence or contribution
Judgment date: 4 April 2011
Varga v Galea  NSWCA 76
New South Wales Court of Appeal1
- The defendant carries the onus of establishing causation if claiming contributory negligence on the part of the plaintiff or a reduction in damages based on the negligence of the plaintiff's employer under s 151Z Workers Compensation Act 1987 (WCA).
- The defendant must lead evidence, in some cases expert evidence, of the reasonable practicability of alternative safety measures contended by it to have been available to the plaintiff and/or employer, unless they were a matter of common sense.
- In order to successfully establish that a trial judge's assessment of damages was excessive it is necessary to establish error on the part of the trial judge in acting on a wrong principle of law, misapprehending the facts or making "a wholly erroneous estimate of the damage suffered".
The plaintiff was an employee and director of Greystanes Bricklaying Pty Limited (Greystanes). The plaintiff gave evidence that he was undertaking bricklaying work which included filling a besser block wall with concrete at a building site. Both Greystanes and the defendants, Joseph Galea and Pauline Galea, had entered into subcontracting arrangements with the head contractor, Portville Developments Pty Limited, to undertake works at the building site.
During the course of this work on 2 July 2007 the plaintiff gained access to the top of a 4.6 m besser block wall by using a scissor lift. He was holding a rubber hose and pouring concrete from the hose into the besser blocks with one foot on top of the besser block wall and one foot on the scissor lift railing. There were pieces of reinforcing steel (known as starter bars) protruding above the top of the besser block wall at varying lengths but on average approximately 1.2 m. The boom controlling the rubber hose was being operated by Mr Callum who was an employee or agent of the defendants. As a result of the negligent operation of the control panel the boom extended causing the plaintiff to lose balance which caused him to be projected into the air and then fall to the ground. The plaintiff alleged he sustained damage to his back, left knee and a hernia as a result of the defendants' negligence.
The primary issue in relation to the plaintiff's appeal was the issue of causation. Section 5D(1) of the Civil Liability Act 2002 (CLA) provides:
- A determination that negligence caused particular harm
comprises the following elements:
- that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
- that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
Section 5E of the CLA provides:
District Court proceedings
The trial judge, Balla DCJ, found liability on the part of the defendants.
The defendants alleged that Greystanes were also negligent and that there should be a reduction in the plaintiff's damages for Greystanes' own negligence pursuant to s 151Z of the WCA. The defendants also alleged the plaintiff had been contributorily negligent on the following grounds:
- failure to wear a harness;
- failure to work from inside the scissor lift;
- not letting go of the rubber hose when he initially felt it move;
- failing to work from the scissor lift platform or scaffolding.
The trial judge, Balla DCJ, assessed Greystanes' negligence at 25% for failing to take all reasonable steps to ensure that the plaintiff wore a harness. Balla DCJ agreed with the defendants that the plaintiff was entitled to take proceedings independently of the WCA against his employer, that if he had done so they would have recovered contribution from that employer as a joint tortfeasor to the extent of 25% and, accordingly, that the plaintiff's damages should also be reduced by 25% of the damages he would have recovered if assessed in accordance with s 151Z(2) of the WCA. Balla DCJ also found that the plaintiff's failure to wear a harness constituted a failure to take reasonable care for himself. She reduced the plaintiff's damages by a further 25% for his own negligence.
There was no expert evidence concerning the use of a safety harness. Whilst the plaintiff's evidence was confused, he did give evidence that he could not have safely attached a safety harness to the scissor lift or any other structure. The plaintiff also gave evidence that if he had attached the harness to the rail of the scissor lift he would have probably died or been more seriously injured. The rationale was that the harness could have been caught up so that he was crushed or that as he was projected upwards above the starter bars he may have become impaled. Balla DCJ did not accept the plaintiff's evidence and found that a safety harness would, on the balance of probabilities, have prevented the plaintiff sustaining any significant injury, or, that he would have sustained a much less serious injury than he sustained if he had been using a safety harness.
At first instance, the defendants conceded the plaintiff had sustained a significant injury to his back as a result of the accident. The plaintiff also alleged that he sustained injury to his left knee and a hernia. The defendants disputed that those injuries were causally related to the accident. The plaintiff had undergone an arthroscopic meniscectomy of the left knee on 1 October 2002. In November 2002 the plaintiff's treating doctor recorded that the plaintiff's knee pain was much better. There was no evidence of any complaints of knee pain in the 3 years prior to the accident. The hospital notes following the accident recorded early complaints of knee pain. The plaintiff gave evidence that during his admission at hospital and following his discharge from hospital he made continual complaints to his treating doctors about the presence of pain in his left knee and groin. The plaintiff also gave evidence that his doctors told him that the left knee and groin pain was related to his back injury. The trial judge accepted the plaintiff's evidence in this regard.
The trial judge assessed the plaintiff's damages pursuant to the CLA at $633,799. After the s 151Z(2) reduction of 25% the plaintiff was entitled to $498,160. A further reduction of 25% was deducted from this figure for the plaintiff's own contributory negligence. Accordingly, verdict and judgment was entered in favour of the plaintiff in the sum of $373,620 plus costs.
Court of Appeal
The plaintiff appealed the finding that Greystanes breached its duty of care to the plaintiff in failing to supply a safety harness and ensure the plaintiff wore it, and whether that negligence was causative of his injuries. If it was found that Greystanes was not negligent the plaintiff argued there could be no finding of contributory negligence against him for failure to wear a safety harness. The Court of Appeal accepted this was the case.
The defendants cross-appealed challenging Balla DCJ's assessment of damages.
In the Court of Appeal, McColl JA delivered the unanimous judgment of the Court. Her Honour confirmed that s 5B of the CLA codifies the test for breach of duty of care which was enunciated by Mason J in the High Court of Australia decision of Wyong Shire Council v Shirt2 and commonly known as the "Shirt Calculus".
McColl JA confirmed that to the extent the case was governed by the CLA, causation was determined by reference to s 5D. That required the application of the "but for" test of causation: Adeels Palace Pty Ltd v Moubarak3. At common law, causation is a question of fact, determined according to common sense in which the "but for" test plays an important role. McColl JA also made reference to s 5E of the CLA and noted that the "plaintiff" carries the onus of establishing the elements of negligence. In respect to contributory negligence or contribution claims "plaintiff" meant the party propounding the issue, in this case the defendants.
On appeal, the plaintiff's primary submission was that there was no evidence by which the trial judge could have been satisfied that a safety harness could have been attached to the scissor lift or that a properly adjusted harness would have reduced or prevented the plaintiff's injuries. McColl JA held that for the defendants to successfully establish that Greystanes had failed to provide adequate safeguards in the form of a safety harness they needed to be able to establish that the use of a safety harness was a reasonably practicable precaution or alternative course of conduct which would have avoided or reduced the consequences of the injuries: Neill v NSW Fresh Food and Ice Pty Ltd4. Her Honour further held evidence of the practicability of a proposed alternative course or safeguard "is essential except to the extent that [it is] within the common knowledge of the ordinary man": Maloney v Commissioner for Railways (NSW)5.
There was no expert evidence available about the use of a safety harness. The plaintiff's evidence was that there was nowhere to put a safety harness and that if a safety harness had been used he may have died or sustained more serious injury. McColl JA held that there was no evidence available to the trial judge to conclude that a safety harness might have prevented the plaintiff from being injured or reduced the risk of injury. McColl JA considered that whether a safety harness would have prevented the plaintiff's injuries was not a matter of common sense and required technical explanation. She held that it was not open to the trial judge to conclude that the defendants had established the employer was negligent. McColl JA further held that absent the finding Greystanes were liable, the defendants' allegations of the plaintiff's own contributory negligence also failed. Accordingly, her Honour allowed the plaintiff's appeal.
Turning then to the defendants' cross-appeal on the issue of quantum, the defendants contended there were four heads of damage which should be re-assessed. They were:
- that the award of 40% for non-economic loss pursuant to s 16 of the CLA for a person of the plaintiff's age (the plaintiff was 61 years of age at the time of the trial) was excessive;
- that the award for past economic loss was excessive having regard to the plaintiff's financial records which disclosed that he had earned $5,000 gross in the financial year prior to the accident;
- that the assessment of the plaintiff's future economic loss and future domestic assistance was inconsistent with the plaintiff's own reported needs to his doctors; and
- that the assessment of the plaintiff's attendant care requirements was inconsistent with his medical evidence.
The defendants alleged that all heads of damage should be reduced because the plaintiff's prior left knee injury would have reduced his earning capacity, requirement for domestic assistance and would have led to him incurring further out-of-pocket expenses but for the accident. They contended that the plaintiff's prior left knee injury should have been considered in assessing the plaintiff's damages: Seltsam Pty Limited v Ghaleb6.
McColl JA found that the trial judge was not in error in finding that the plaintiff's left knee pain had resolved following the surgery in 2002. She opined that the defendants failed to demonstrate any error in the trial judge's reasoning, especially when the defendants' medical experts had not been furnished with a complete set of the plaintiff's medical records to enable them to reach informed conclusions about the plaintiff's pre-existing injuries and complaints of pain and injury immediately following the accident.
McColl JA held there was no error in the trial judge's assessment of the plaintiff's requirements for past and future domestic assistance and attendant care.
The defendants also submitted that the assessment of 40% of a most extreme case for non-economic loss was too high for a 61-year old. McColl JA confirmed that age is only one factor to consider when assessing non-economic loss and the trial judge's assessment was within an appropriate discretionary range. Accordingly, McColl JA held there was no basis upon which the award of 40% of a most extreme case should be reviewed.
In relation to the assessment of the plaintiff's past and future economic loss it was noted that at the trial the defendants conceded that the plaintiff was earning $500 per week at the time of the accident. In the Court of Appeal the defendants accepted they had made this concession but contended that the concession did not relate to all prior or subsequent periods. In assessing the plaintiff's economic loss the trial judge allowed $350 net per week for the past and the same amount for the future to age 67 on the basis the plaintiff had a residual earning capacity. McColl JA held that the defendants could not establish the trial judge had been in error especially in circumstances where she had accepted their submissions on residual earning capacity.
Accordingly the defendants were unsuccessful in challenging each head of damage assessed by the trial judge.
The case serves as a reminder that the defendant carries the onus of establishing all the elements of negligence when arguing contributory negligence or contribution under s 151Z(2) of the WCA or s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. It also serves as a reminder that if arguing contributory negligence or contribution on the basis of a failure to utilise a reasonable practicable alternative, in the absence of the alternative being a matter of common sense, evidence, preferably expert evidence, must be led.
The Court of Appeal has also reiterated that the plaintiff's age is only one factor to be considered when assessing non-economic loss and is dependant on the circumstances of an individual plaintiff.
The case demonstrates how difficult it is to upset a discretionary assessment of damages.
This is especially so in circumstances where the medical experts have not been furnished with all relevant medical records to allow the doctors to reach a fully informed conclusion in respect of the plaintiff's condition.
A defendant bears the evidential onus in showing that a plaintiff who suffers from a pre-existing condition would have deteriorated in any event, regardless of the accident.
1 Beazley JA, McColl JA and Handley AJA
2  HCA 12
3  HCA 48
4  HCA 4
5 (1978) 52 ALJR 292
6  NSWCA 208
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