In the recent High Court decision of Strong v
Woolworths the Court was asked to consider whether the
plaintiff had proven that the defendant was negligent in
circumstances where there was no evidence to complete the chain of
causation necessary to show that the defendant's breach had
been causative of the plaintiff's injury.
The decision is an instructive example of how the courts decide
issues of causation as questions of fact based on the balance of
probabilities and how the key question in any inquiry into
causation remains whether it was more probable than not that the
defendant's breach was causative of the plaintiff's
At around 12.30 pm Kathryn Strong ('the
plaintiff'), who was disabled and required the use of
crutches, was injured when the tip of her crutch came into contact
with a chip lying on the floor of an area occupied by Woolworths
('the sidewalk area') in a shopping centre
in Taree. The plaintiff sued Woolworths and the occupier of the
shopping centre. She succeeded against Woolworths but failed
against the occupier.
Woolworths appealed the decision to the NSW Court of Appeal on
the basis that the primary judge had not addressed causation. As
there was no direct evidence as to when the chip had fallen onto
the floor in the sidewalk area, the Court concluded that it was
more likely than not that the chip had fallen in the immediate
period just prior to the incident. The Court based this conclusion
on the fact that:
a chip is something commonly consumed during lunch;
the incident occurred at lunchtime; and
the shopping centre owner had an additional cleaner engaged to
clean the area around the food court between 11 am and 2 pm which
suggested that there was an increased risk of food being dropped in
the sidewalk area close to the food court.
In those circumstances, the Court of Appeal stated that it could
not be concluded that, had there been a proper cleaning system, it
was more likely than not that the chip would have been detected and
the plaintiff would not have slipped. On that basis, the Court of
Appeal set aside the plaintiff's judgment and allowed
High Court of Australia
In response, the plaintiff appealed to the High Court. The Court
considered the elements required under section 5D of the Civil
Liability Act 2002 (NSW) in determining whether a
defendant's act caused the plaintiff's harm. However, the
majority considered that the appeal ultimately turned on the
correctness of the Court of Appeal's conclusion that
"it was not open to infer that the chip had been on the
ground long enough for it to have been detected and removed by...
an adequate cleaning system".
Woolworths argued that it was necessary for the plaintiff to
adduce evidence to prove that it was more probable than not that
the chip had remained on the floor for a long enough time that, had
Woolworths implemented a proper system of cleaning, the chip would
have been detected and removed.
The High Court rejected this argument and said that the
plaintiff's onus of proof could be satisfied by considering the
"probabilities in circumstances in which the evidence did
not establish when the chip was deposited". That is, the
appellant could satisfy the onus by showing that, on balance, the
probabilities favoured a conclusion that the chip had been on the
floor for a greater length of time than the 15 or 20 minutes before
the plaintiff fell.
In those circumstances, the majority found that, since the
evidence did not permit a finding as to when the chip was dropped
onto the floor in the sidewalk area, it was an error for the Court
of Appeal to hold that it could not be concluded that the chip had
been on the ground long enough for it to have been detected and
removed by the operation of a reasonable cleaning system.
On that basis, a majority of the High Court allowed the appeal
and reinstated the plaintiff's judgment obtained at first
While the facts in dispute in Strong v Woolworths were
specific to slip and fall cases, causation is a concept integral to
all areas of tortious liability, including motor vehicle accidents.
In that regard, the reasoning of the majority has general
application and suggests that, where the defendant's breach of
duty is not in dispute, the plaintiff will not fail to establish
causation merely because there is an absence of evidence positively
establishing the causal link between the defendant's breach and
the incident giving rise to the plaintiff's injury.
Rather, it will often be enough for the issue of causation to be
decided adversely to a defendant if it is open to the court to find
on the balance of probabilities that the plaintiff's injury
would not have occurred had the defendant complied with its duty of
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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