Australia: Cause & Causality

Last Updated: 11 January 2004
Article by Greg Williams

Most Read Contributor in Australia, November 2017

Key Points

  • 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 [2003] 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 [2003] 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:

  1. 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".
  2. 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 [2003] 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.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions