Several higher court decisions in 2012 have highlighted the importance of considering the crucial ingredient in negligence actions – causation.
The Court of Appeal's decision in New South Wales v Mikhael  NSWCA 338 (Mikhael) is one such case. In Mikhael, the plaintiff, a student, had been seriously assaulted by another student (T) at a state high school after class. There were warning signs about T's violent behaviour: he had assaulted another student six weeks earlier and had had an argument with the plaintiff just before class had ended. The teacher on duty was not aware of the prior assault. The plaintiff argued the defendant breached its duty of care by failing to provide teachers with information as to the student's propensity to violence, which would have alerted them to apply techniques to avert such incidents.
The plaintiff was successful at trial, however the Court of Appeal overturned the decision, finding that although duty of care and breach of duty were established, the plaintiff had not established that the defendant's failure to take steps to prevent the assault was a "necessary condition of the occurrence of the harm", as required by section 5D(1) of the Civil Liability Act 2002 (NSW), being the "but for" test.
The Court of Appeal found that while certain precautions should have been taken, the plaintiff had not proved that the assault would not have occurred had those precautions been taken.
The Queensland Supreme Court reasoned along the same lines in another assault case, but this time in an employment context, in Serra v Couran Cove Management Pty Limited  QSC 130. In that case, the Supreme Court held that an employer did not breach its duty of care to the plaintiff employee by failing to investigate, reprimand or discipline a co-worker prior to an assault committed by the co-worker on the plaintiff.
However, even if there had been a breach of duty, the court would not have drawn a causal link between the breach and the assault. While there were several indicators that the co-worker's behaviour could lead to a physical confrontation with the plaintiff, the court held that there was no basis in the evidence for concluding that any measures taken by the employer to reprimand, investigate or discipline the co-worker would have prevented him from assaulting the plaintiff anyway, stating "the conduct of criminal assailants is not necessarily dictated by reason or prudential considerations". In fact, it was just as likely that a reprimand would have incited an attack rather than have prevented one.
In Strong v Woolworths Ltd  HCA 5 (Strong), there was a lack of direct evidence as to how long a chip had been lying on the floor. The High Court therefore drew inferences from the available evidence to support a finding of causation.
In Strong, the plaintiff was an amputee whose crutch slipped on a (once) hot chip, causing her to fall. The accident occurred during lunchtime in an area for which Woolworths was responsible. The plaintiff alleged Woolworths was negligent in failing to have an inspection and cleaning regime in place that would have detected and removed the chip. There was no question that Woolworths did not have an effective system in place.
The Court of Appeal relied on the inference that the chip was likely to have been deposited on the floor at lunchtime. It followed that even if there was a periodic inspection and cleaning regime, the chip could have been dropped after the last inspection and therefore would not have prevented the plaintiff's fall.
The High Court overturned the Court of Appeal's decision on the basis that the evidence did not support the Court of Appeal's finding on causation. Proof of the causal link and an occurrence requires consideration of the probable course of events had the omission not occurred. The High Court, noting that hot chips are eaten not just at lunchtime, concluded the chip could have landed on the floor at any time since the opening of the shopping centre that morning. Therefore, a system of inspection and cleaning every 20 minutes in the area would have detected and removed the chip in that wide period of time.
The Victorian Court of Appeal considered the question of causation in the context of allegedly negligent legal advice. In Simply Irresistible Pty Ltd v Couper  VSCA 128, the plaintiff sued its legal advisors, alleging they had failed to advise the plaintiff in relation to exercising an option that later lapsed, depriving the plaintiff of any benefit had it exercised the option. The plaintiff argued that had it been properly advised, it would have exercised the option. The Victorian Court of Appeal agreed with the trial judge in this instance to say that whilst the legal advisors failed to properly advise the plaintiff on the option, that negligence did not cause the loss suffered by the plaintiff, as it was clear the plaintiff held an "unshakeable view" about their ability to exercise the option that overrode any legal advice they would have received.
Relevantly, the Court of Appeal stated that the question of causation could not be resolved by applying an objective test as to what a prudent client would have done if properly advised. Rather, it is the subjective state of mind of the particular client that is relevant.
The message from these cases is that even with the return to the more straightforward "but for" test, causation remains a difficult issue for both plaintiffs and defendants and it is hard to predict. Strong is a perfect example of that – the Court of Appeal found unanimously in favour of the defendants and the High Court overturned that decision six to one.
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