- The recent reforms in the Civil Liability Act 2002 (NSW) specify a new test for causation in negligence actions for personal injury.
- The first significant comment on the operation of this test is found in the judgment of Justice Ipp in Ruddock v Taylor  NSWCA 262.
- Justice Ipp suggests that this new causation test may be more liberal in "exceptional cases".
It is a truth universally acknowledged that a plaintiff in possession of a claim in tort must establish that the injury in respect of which he or she issues was caused by the tortious act of the defendant.1
If only it were as simple as that. Difficulties arise because, in hard cases, it is often difficult to say whether event A "caused" event B.
If, while on my way to work, I am run over by a speeding driver who drives through a red light then my injuries are caused by the driver’s speeding. However, my injuries have also been caused by my partner carelessly spilling milk on my shirt that morning. If I had not been delayed by the need to change my shirt, I would not have been crossing the road at that time.
Although both acts were negligent, clearly the driver should be liable for my injuries and my partner should not. However, the driver and my partner are at the opposite ends of a spectrum of causality which will contain many events which prompt much less certain answers. For example, what if the milk had been spilt not by my partner, but by the driver’s flatmate, causing the driver to be late for an important appointment and, therefore, to speed. Should the flatmate be liable? I suspect that most people’s automatic response is to say no. However, stranger cases have been run.2 Alternatively, how would it affect the assessment of the driver’s liability if I was rushing to make up for lost time and failed to look before I crossed the road?
The difficulties only increase if there is a genuine question as to the factual connection between event A and event B, a situation which often arises in product liability cases involving complex disease processes.
The complexities of causation are such that most attempts by the law to establish a "test" of causation, or even to describe the method by which it should be determined, have generally failed. Even the High Court has been troubled by the problem. It has said that causation is a matter to be determined by the application of "common sense".3 One would hope that is so, but it gives little guidance as to the criteria which should be applied to determine liability.
The adoption of the "common sense" test of causation has arguably contributed to an expansion of the scope of tortious liability. Readers will be aware of recent complaints that the burden which the law of negligence imposes upon potential defendants, in particular doctors and other professionals, sporting and recreational clubs and local councils, has expanded to such an extent that it is having a negative impact on society. Certainly many such persons have seen huge increases in their insurance premiums in recent times.
The result has been recent legislative reform of negligence law including a new test of causation. In NSW the relevant statutory provisions are sections 5D and 5E of the Civil Liability Act 2002 (NSW).
Taylor v Ruddock  NSWCA 262, a decision of the NSW Court of Appeal, represents, so far as we are aware, the first significant judicial comment on the operation of these sections. It is of particular interest because the comment in question was made by Justice Ipp. Justice Ipp was the chair of the committee which authored the Federal Government’s report on Negligence Reform4.
Taylor v Ruddock illustrates how causation questions can arise even in relatively straightforward cases. Mr Taylor is a British national who is a permanent resident of Australia. He was convicted of sexual offences involving children. The Minister for Immigration cancelled his visa and he was imprisoned pending deportation. The High Court then found that the Minister had no power to cancel his visa because Mr Taylor belonged to a special category of persons, namely British citizens who had been resident in Australia since before 1984, who could not be treated as aliens under the Constitution. In doing so the High Court overturned previous High Court authority on this very question.
It followed from the High Court’s decision that Mr Taylor’s imprisonment was unlawful (although until the High Court’s decision there was no reason to think that was the case). Mr Taylor sued the Minister for damages in false imprisonment. Could the Minister’s unlawful cancellation of Mr Taylor’s visa be said to have caused his imprisonment?
Three judges of the NSW Court of Appeal said unanimously that it could mean that Mr Taylor recovered
damages. In giving his reasons for judgment, Justice Ipp commented on the operation of section 5D of the Civil Liability Act. According to Justice Ipp, under section 5D, the test of causation involves two steps, both of which must be satisfied to establish causation:
- First, a court must determine whether, as a matter of fact, the damage caused the injury. This, said Justice Ipp, involves determining whether there was, on the part of the defendant, historical involvement in [the plaintiff] suffering actionable damage".
- Second, the court must determine whether it is "appropriate" for the scope of liability to extend to the conduct in question. This, said Justice Ipp, was a normative question which would involve the application of "policy principles".
Justice Ipp’s comments are not binding authority. However, given his experience and reputation in the area they are likely to be accorded some weight. They raise the following interesting issues:
- Section 5D did not, on its terms, apply to Mr Taylor’s case. Section 5D applies to actions brought in the tort of negligence, not false imprisonment. Nevertheless Justice Ipp said that "the principles which [section 5D] embodies are in accord with the common law". In other words, Justice Ipp regards section 5D as codifying the existing law.
- However, the comments of Justice Ipp raise the possibility that section 5D might be applied to expand rather than reduce the scope of liability. Justice Ipp referred to a decision of the UK House of Lords, Fairchild v Glenhaven Funeral Homes  1 AC 32, a case concerning asbestos exposure which stands for the proposition that, in certain circumstances at least, a plaintiff may recover damages in negligence even if he or she has failed, in a strict sense, to prove factual causation.
Justice Ipp’s reference to Fairchild may reflect the fact that section 5D contains a provision dealing with "exceptional cases". Justice Ipp may be suggesting that this provision should be treated as an exception to the general test described above.
- Justice Ipp is explicitly critical of some terminology usually used by courts when deciding the causation question, including the phrase "common sense causation", the phrase approved by the High Court.
1 Apologies to Jane Austen
2 See, for example, Tame v State of New South Wales (2002) 76 ALJR 1348
3 March v Stramare (1991) 171 CLR 506
4 Review of the Law of Negligence Final Report, September 2002, Commonwealth of Australia.