Lyle v Soc

[2009] WASCA 3

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   LYLE -v- SOC [2009] WASCA 3

CORAM:   STEYTLER P

BUSS JA
MILLER JA

HEARD:   14 NOVEMBER 2008

DELIVERED          :   12 JANUARY 2009

FILE NO/S:   CACV 123 of 2007

BETWEEN:   MAX WILLIAM LYLE

Appellant

AND

MILORAD SOC
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STAVRIANOU DCJ

Citation  :SOC -v- LYLE [2007] WADC 140

File No  :CIV 2786 of 2002

Catchwords:

Negligence - Fatal accidents legislation - Reasonable foreseeability - Whether principle of remoteness of damage applies to claims under fatal accidents legislation

Negligence - Fatal accidents legislation - Reasonable foreseeability - Death as a consequence of the misuse of prescription drugs - Whether death the reasonably foreseeable result of a minor motor vehicle accident - Turns on own facts

Negligence - Fatal accidents legislation - Causation - Matter of ordinary common sense and experience - Turns on own facts

Legislation:

Fatal Accidents Act 1959 (WA), s 4(1), s 6, sch 2

Result:

Appeal allowed

Category:    A

Representation:

Counsel:

Appellant:     Mr M H Zilko SC & Mr P E Jarman

Respondent:     Mr G Droppert

Solicitors:

Appellant:     Jarman McKenna

Respondent:     Friedman Lurie Singh & D'Angelo

Case(s) referred to in judgment(s):

Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109

Chapman v Hearse (1961) 106 CLR 112

Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317

Haber v Walker [1963] VR 339

Lisle v Brice [2001] QCA 271; [2002] 2 Qd R 168

Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506

McGhee v National Coal Board [1973] 1 WLR 1

Medlin v The State Government Insurance Commission (1995) 182 CLR 1

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] AC 388

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Soc v Lyle [2007] WADC 140

State of Western Australia v Watson [1990] WAR 248

Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317

The State of South Australia v Ellis [2008] WASCA 200

Wyong Shire Council v Shirt (1980) 146 CLR 40

1. STEYTLER P:  On 24 September 1999 the appellant was involved in a motor vehicle accident.  The accident (1999 accident) occurred in Greenwood, at the intersection of Warwick and Wanneroo Roads.  The intersection forms a T-junction.  The appellant was driving his car in Warwick Road.  He intended to turn left into Wanneroo Road, so as to travel in a northerly direction.  Although the intersection is controlled by a traffic light, the lane for traffic turning left into Wanneroo Road is controlled only by a give‑way sign.  A car in front of the appellant, driven by Ms Slavica Soc (deceased), was also preparing to turn left into Wanneroo Road.  The car driven by the deceased began to move away and the appellant followed.  When the deceased's car stopped suddenly, the appellant drove his car into the back of it.  The appellant's car had, by then, travelled forward only about one car length since being stationary.  His car was travelling at a speed of 5 km to 10 km per hour at the time of the collision.

2. On the following day, the deceased was diagnosed with a flexion extension injury to her neck.  She was prescribed painkillers and anti‑inflammatory medication.  Between then and 28 October 2001, she was continuously treated with medication for pain arising out of the accident‑caused injury and other, pre‑existing, problems.  On the morning of 29 October 2001 she was found to have died during the preceding night.  The cause of death was 'acute combined drug toxicity'.

3. The respondent is the husband of the deceased.  He brought an action against the appellant arising out of the death of the deceased.  The action was one for damages under the Fatal Accidents Act 1959 (WA). Section 4(1) of that Act reads, relevantly, as follows:

   Where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the person injured … 

   Section 6(1)(a) of the Act provides that every action brought under the Act 'shall be for the benefit of relatives of the person whose death has been caused in any manner referred to in section 4'. Section 6(2) provides that, in every action, the court 'may give such damages as it thinks proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit the action is brought'. The word 'relative' is defined in sch 2 of the Act. It includes the spouse and any child of the deceased.

4. The respondent brought the action on behalf of himself and his daughter Jovana.  He alleged that the appellant was responsible for the death of the deceased.  This was said to be because the appellant's negligence had caused the accident (this was not in issue), the accident had caused the flexion extension injury sustained by the deceased and the deceased's death was caused by her ingestion of medications prescribed in respect of that injury.

5. The trial judge found that the appellant was liable for the death of the deceased:  Soc v Lyle [2007] WADC 140. He also found that the deceased had not been contributorily negligent. The appellant appeals against both findings.

6. There is no challenge to any of the findings of fact made by the trial judge.  These can be broken down into three categories.  The first category relates to the deceased's medical history prior to the accident.  The second relates to her medical history between the date of the accident and 28 October 2001.  The third relates to events on 28 and 29 October 2001.

Medical history of the deceased prior to the accident

1. The deceased had a long history of presenting at doctors for treatment for pain.  She had been involved in three motor vehicle accidents prior to the 1999 accident.  The first of these occurred in 1982.  This accident caused her to strike her head against the steering wheel of her car and to suffer a hyperextension injury to her neck.  A report dated 19 February 1987 by Dr D Hoffman, a neurological registrar, recorded a history of daily headaches subsequent to this accident.  The other prior accidents occurred in August 1994 and March 1995 respectively.  The injuries sustained by the deceased in these accidents were minor and of short duration.

2. It seems, also, that the deceased had a history of headaches that preceded the 1982 accident.  She reported to her medical advisers that she had suffered from these since the age of 12.  She had also received treatment, prior to the 1999 accident, for obesity, diabetes and diplopia.

Medical history of the deceased between the date of the 1999 accident and 28 October 2001

1. On the day after the 1999 accident, the deceased attended the emergency department of the Joondalup Health Campus.  She said that she suffered from pain and stiffness in her neck.  I have mentioned that she was diagnosed with a flexion extension injury to the neck and that she was prescribed painkillers and anti‑inflammatory medication.  She was discharged with advice that she be reviewed by her general practitioner.

2. At that time, the deceased was a regular attendee at the Marangaroo Medical Centre.  She had been attending that centre since about 1986.  She ordinarily saw one of Dr Debbie Roberts or Dr Wendy Rappeport.  Both chronicled that the deceased had suffered from a long history of headaches, ill health, mental health issues, obesity and suspected abuse of prescription medication.

3. From 1998 onwards, the medical records reveal that the deceased repeatedly asked for repeat prescriptions of analgesics.  She offered a number of reasons for this.  Examples are that her sister had taken analgesics from her, that she was sending analgesics overseas so that she would have access to them in the future when she travelled and that her husband had thrown her analgesics down the toilet during an argument.  She also regularly attributed her pain to her car accidents and, consequently, asked that her medications be billed to the State Government Insurance Commission (SGIC).  The medical records reveal that the SGIC was often billed for medication but that the deceased's requests in this respect were sometimes refused by Dr Roberts and Dr Rappeport on occasions when they felt that the accidents were not the true cause of the ailments.

4. Between May 2000 and her death, the deceased attended the Highclere Medical Practice.  There she saw one or other of Dr David Chin, Dr Aminder Singh and Dr Indrani Saharay.  All three doctors considered that she suffered from chronic pain and headaches as a result of the 1999 accident.  The deceased seemingly had most to do with Dr Saharay, who she saw on 26 occasions between June 2000 and October 2001.  Various drugs were prescribed.  Physiotherapy was also recommended.

5. At some point, the deceased began to stockpile medication.  On 12 July 2001, Dr Saharay noted in her medical records concerning the deceased that she was 'stowing away Mersyndol Forte for when the claim ends'.  In her evidence at the trial, Dr Saharay said that, by mid‑August 2001, the deceased was being prescribed large quantities of analgesic medication which, the deceased told her, she was stockpiling.  Dr Saharay also testified that, at times, the deceased told her that she needed further prescriptions because her medication had been lost or stolen.

6. In her medical notes dated 22 August 2001, Dr Saharay mentioned that she had advised the deceased to cut down her medication.  Her note for a consultation on 30 September 2001 records that she was told by the deceased that all of the deceased's medication had been taken by her husband.

7. On 10 October 2001 the deceased fell and injured her back.  She attended the medical centre on 11, 13, 17 and 21 October 2001.  On 13 and 17 October 2001 she was prescribed medication for neck pain.

8. It seems that, throughout the period leading to her death, the deceased was given regular advice to reduce her intake of prescription medicine.  She was also discouraged from stockpiling medication.  Prescriptions were occasionally refused, sometimes because prescriptions had been issued by other general practitioners within a short time frame.  However, the record of consultations shows an overall tendency to prescribe powerful analgesics for the deceased, notwithstanding the indications that she was abusing them.  These were usually billed to the SGIC.  In a report, Dr Saharay noted that she prescribed large quantities of medication for the deceased 'in good faith and understanding her chronic pain and financial situation'.  Some attempts were made to deal with the abuse.  Prescriptions were sometimes 'forward‑dated' to stagger the deceased's purchase of the medications and Dr Saharay told other GPs at the surgery not to provide repeat prescriptions at short intervals.

9. The deceased also suffered from psychiatric problems.  Dr S H Kostov, a psychiatrist, saw her on a number of occasions between 1999 and 2001.  In his report dated 22 January 2002, he said that the deceased had presented with 'a long history of high anxiety, mood fluctuations, pain complaints, marked self pre‑occupations' and 'years of headaches, some of which were with migrainious characteristics, but … the majority were of a tension type'.  He also reported that she had complained of headaches, dizziness and double vision that had occurred since the 1982 accident.  He said that on 29 August 2001 (in fact he had seen the deceased on 28 August 2001) the deceased had said that her husband had 'walked out' several days before and that she did not know where he was.  She reported a strong exacerbation of headaches at that time.

10. In a report prepared in 2006, Dr Chin wrote that the chronic pain and ongoing headaches suffered by the deceased 'could most probably have resulted in psychosocial stress and even depression'.  He said that she also had ongoing domestic and mental problems which would have 'contributed and magnified her stress and depression'.

11. The trial judge was satisfied, on the evidence of Dr Saharay and others (including Dr Jack Edelman, a specialist rheumatologist, Dr Peter Panegyres and Professor Frank Mastaglia, neurologists, and Dr Ken Fitch, a sports physician), that the deceased's 1999 accident‑caused injuries had led to her ongoing treatment with analgesics, even if there were other contributing factors.  Also, notwithstanding the reports of marital disharmony that had been made by the deceased to treating doctors, the trial judge found that, on the whole of the evidence, there had in fact been no significant marital conflict.  As I have said, these findings are not challenged.

Events on 28 and 29 October 2001

1. Dr Saharay saw the deceased on 28 October 2001.  On that day she prescribed Oxycontin, a pain relief drug containing controlled release oxycodone hydrochloride.  The deceased was given a prescription for 20 slow release 20 milligram Oxycontin tablets.  Dr Saharay prescribed two tablets a day, being the recommended dose.  She told the deceased to take one, twice a day and wrote this on the prescription:  ts 184, 185.  The tablets should consequently have lasted for 10 days.  Dr Saharay, being aware of the deceased's tendency to abuse prescription medication, anticipated that she would take more than the recommended dose.  She told the deceased that she should ensure that the tablets lasted at least seven days.  This is surprising, given that it necessarily conveyed to the deceased that it was permissible for her to take an increased dosage of three tablets a day for six of the seven days.

2. However, this advice appears to have had no bearing on the death of the deceased that night.  On the following morning, 12 tablets were found to be missing from the packet of Oxycontin that had been prescribed on the previous day.  Also, oxycodone levels found in the deceased's stomach were consistent with the consumption of a single dose of 80 milligrams of Oxycontin (equating to four 20 milligram tablets).  A report dated 22 January 2002 prepared by a forensic pathologist, Dr G A Cadden, said that 'it certainly is a definite possibility that there [had] been considerable consumption of … Controlled Release Oxycodone Hydrochloride in the 24 hour period prior to [the] death'.  Dr Cadden said that, allowing for the fact that the mean maximum oxycodone plasma concentration, after a single dose of 20 mg of slow release Oxycontin tablets, was anticipated to be 0.014 mg/l (this would have been 0.034 mg/l in the case of immediate release oxycodone), the level of 0.1 mg/l that was found in the deceased's body was 'considerably elevated'.  It is obvious from this that the level found was considerably greater than could have been anticipated if only two or three tablets had been taken.  In addition, Amitriptyline and Diazepam were found in the deceased's blood, liver and stomach.  Dr Cadden identified the cause of death as 'Acute continued drug toxicity (principally Oxycodone, also Amitriptyline, Diazepam effect)'.

3. It is consequently plain that the deceased had significantly overdosed on the Oxycontin tablets at a time when she had also ingested Amitriptyline and Diazepam.  Notwithstanding the extent of the overdose, the trial judge was satisfied that the death was accidental.

Reasoning of the trial judge

1. The trial judge referred to the evidence at some length.  However, his reasoning on the issue of liability is very brief.  He identified what he considered to be the applicable legal principles.  He said, in particular, that it was unnecessary for the respondent to prove that the appellant's negligence was the sole cause of the injury or damage and that it was sufficient if it was a cause.  He mentioned that a causal contribution is material if it is shown on the evidence not to have been negligible.  He also said that, if the respondent proved a breach of duty by the appellant and that the breach increased the risk of an injury which eventuated, then, in the absence of evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed, it would be taken that the breach of the common law duty of care caused or materially contributed to the injury.  Then, after referring to some of the factual findings to which I have earlier referred, he went on to say [186] ‑ [190]:

   The plaintiff has established that the prescription of Oxycontin for treatment for injuries suffered in the accident as a result of the defendant's negligence was a material cause of the death of the deceased.

   There is no medical evidence that the deceased died as a result of cigarette smoking, obesity or lack of fitness.

   The evidence as to marital stress was vague and unconvincing … I am not satisfied that there was any failure by the deceased to seek appropriate counselling and advice.  There is no evidence that even if there was a failure to seek such assistance, that such failure caused or contributed to the death of the deceased.

   I do not consider that the deceased was guilty of any contributory negligence.

   The plaintiff is entitled to judgment.

Grounds of appeal

1. There are four grounds of appeal.  These read as follows:

   1.The learned trial judge erred in finding that the deceased's death on 29 October 2001 was caused by the appellant's negligent driving on 24 September 1999.

   2.In finding that the appellant was liable for the deceased's death, the learned trial judge erred in failing to consider and determine whether the deceased's death from an overdose of prescribed medication was a reasonably foreseeable consequence of the motor vehicle accident some two years earlier.

   3.The learned trial judge erred in finding that the deceased was not guilty of contributory negligence in relation to her death.

   4.The learned trial judge erred in failing to give any or any adequate reasons for his finding that the deceased was not guilty of contributory negligence.

2. I will deal first with grounds 1 and 2.

Grounds 1 and 2

1. The trial judge appears to have concluded that, because the Oxycontin was prescribed at least partly in respect of the pain resulting from the injuries sustained in the 1999 accident, for which the appellant was liable, and because the Oxycontin was a material cause of the deceased's death, the appellant's negligence in causing the 1999 accident was a material cause of the deceased's death.  A number of factors are missing from this logic. 

2. The first of these is foreseeability. Both parties were content to argue the appeal upon the assumption that the principle of remoteness of damage applies to an action under s 4(1) of the Fatal Accidents Act.  That section is the equivalent of what is ordinarily referred to as a Lord Campbell's Act section (from an 1846 English statute, now the Fatal Accidents Act 1976 (UK)), which is also mirrored in other Australian jurisdictions. 

3. The proposition that the principle of remoteness applies to a Lord Campbell's Act action has been controversial (see the helpful article by Associate Professor Douglas Hodgson, 'Suicide and The Law of Intervening Causation' (2008) 16 Tort Law Rev 69). 

4. In Haber v Walker [1963] VR 339, the Victorian Full Court dealt with an appeal arising out of an action under s 16 of the Wrongs Act 1958 (Vic) that had been brought for the benefit of the widow and children of the deceased. The deceased had been injured in a motor vehicle collision caused by the defendant's negligence. His injuries were so severe as to cause him to suffer fits of deep depression resulting, ultimately, in his suicide. The majority (Lowe & Smith JJ) concluded that the plaintiff in a Lord Campbell's Act claim was not required to prove that the death by suicide was reasonably foreseeable, but only that the death was a consequence of the defendant's negligence.  Hudson J dissented.  He considered that the 'Wagon Mound' (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] AC 388) remoteness test of reasonable foreseeability applied and, because the right of action given by the statute was subject to the requirements of the common law, the death must be shown to have been a reasonably foreseeable consequence of the defendant's negligence.

1. Haber, and other cases touching upon this topic, were considered by the Queensland Court of Appeal in Lisle v Brice [2001] QCA 271; [2002] 2 Qd R 168. That case concerned s 17 of the Supreme Court Act 1995 (Qld), which is to the same effect as s 4(1) of the Western Australian Fatal Accidents Act. The court held that, in a claim for damages for dependency, the requirement of reasonable foreseeability must be satisfied: [39] (Williams JA), [9] (Thomas JA) and [1] (McMurdo P). Williams JA also said that it seemed clear that the term 'caused' in the statutory provision carried the meaning attributed to that term in other branches of the law: [24].

2. In that case, the deceased had received a minor physical injury in a motor vehicle collision. More than three years later he committed suicide. His widow brought an action for damages. The collision had been reasonably severe, even though the injury (a whiplash‑type injury) was relatively minor. However, the deceased developed depression and it was this which led to his suicide. The court accepted that the appellant was liable, having found that the requirements of causation and remoteness had been satisfied. Williams JA (with whom McMurdo P & Thomas JA agreed) accepted that the trial judge had rightly concluded that 'on the day in question it was reasonably foreseeable that negligent driving might result in the train of events which did in fact occur': [42].

3. Although, in the present case no argument was addressed to the  controversy concerning the requirement of reasonable foreseeability (and the controversy was not referred to by the trial judge), it seems to me, with respect, that the preferable approach is that adopted in Lisle and that the parties were consequently right to assume that the requirement must be satisfied in the case of a claim under s 4(1) of the Fatal Accidents Act.

4. Foreseeability may be relevant to questions of the existence and scope of a duty of care, breach of that duty and remoteness of damage:  Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317 [12] (Gleeson CJ); The State of South Australia v Ellis [2008] WASCA 200 [384]. However, in my respectful opinion, this issue seems to have been entirely overlooked by the trial judge. Reasonable foreseeability of the kind of injury (although not of the particular injury) that has been suffered by the person to whom the duty was owed is a necessary, although not sufficient, condition of the existence of a legal duty of care: Tame [12] (Gleeson CJ); Ellis [384]. The notion 'reasonable foreseeability' marks the limit beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act: Chapman v Hearse (1961) 106 CLR 112, 122; Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, 528. A risk of injury is foreseeable if it is real and not far‑fetched or fanciful, even if extremely unlikely to occur: Wyong Shire Council v Shirt (1980) 146 CLR 40, 48 (Mason J, Stephen & Aickin JJ concurring); Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [64]; Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 [60]. Reasonable foreseeability must be determined at the time of the alleged breach and without hindsight: Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109 [301]; Ellis [385].

5. In the present case, the kind of damage suffered was death as a consequence of the misuse of prescription drugs.  I am, with respect, unable to accept that damage of that kind was reasonably foreseeable as a result of a very minor collision between two motor vehicles.

6. No doubt it is reasonably foreseeable that the victim of even a minor collision will require medical attention.  It is also reasonably foreseeable that such a person may not follow medical advice to the letter.  However, in my respectful opinion, it stretches logic past breaking point to suggest that it is reasonably foreseeable that a minor collision might result in the prescription of medication which would be abused, whether over an extensive period of time or not, to such a degree as ultimately to result in an overdose of fatal proportions.  That is especially so in circumstances in which the overdose was very much greater than even the highest dosage that the deceased could have understood to have been considered acceptable by the prescribing doctor and in which it occurred at a time when other drugs had been ingested. 

7. Counsel for the respondent suggested that the overdose of oxycodone consisted of only one more tablet than the maximum dose which could have been understood by the deceased to have been permissible (three a day).  If that proposition is correct (it is unnecessary to determine whether it is or not), it overlooks the fact that the deceased could not have understood that it was permissible to take three tablets at once (let alone four).  I have said that she was told to take one twice a day and that this was reflected on the prescription.  Dr Saharay's notes of the consultation on 28 October 2001 record that she gave the deceased 'stern advice', at the time of prescribing the tablets, concerning overuse of medication. 

8. Counsel for the respondent also suggested, in this respect, that the evidence of Dr Cadden did not establish that the level of oxycodone found in the blood of the deceased was consistent only with a single dose (as opposed to a staggered dose) of four tablets.  I cannot accept that that is so.  As I have mentioned, he said that it was consistent with an 80 mg dose of controlled release oxycodone and that a single dose of 20 mg would have produced a concentration of 0.014 mg/l, around one‑seventh of the concentration found.  In any event, even a staggered dose of four tablets would have ignored the 'stern' advice that had been given.

9. The position in this case seems to me to be very different from that which arose in Lisle.  I have said that, in that case, although the injuries were relatively minor, the collision was severe.  It is one thing to foresee that, in a severe motor collision creating a life‑threatening situation, injuries might be received that are sufficient to develop depression, leading, in turn, to suicide.  It is another thing, altogether, to foresee that a minor collision will result in abuse of prescription drugs to such a degree as to result in an overdose sufficient to cause the death of the person concerned.

10. Moreover, there is no finding that the appellant's negligence resulted in the deceased suffering any physical or psychiatric injury or condition rendering her at risk of taking a significant overdose of prescription medication.  Consequently, even on the approach of the majority in Haber, the deceased's death was not a consequence of the appellant's negligence.

11. Also, as Deane J pointed out in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, 522, for the purposes of the law of negligence the negligent act or omission must be so connected with the loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of the injury. It is, of course, sufficient that, as a matter of ordinary common sense and experience, the negligence should be regarded as having 'materially contributed' to the harm, in the sense that the contribution was not negligible: McGhee v National Coal Board [1973] 1 WLR 1; State of Western Australia v Watson [1990] WAR 248, 286.

12. In Medlin v The State Government Insurance Commission (1995) 182 CLR 1, 6 ‑ 7, Deane, Dawson, Toohey and Gaudron JJ said (citations omitted):

    For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience … [W]here the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage … the 'but for' test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test.  If, in such a case, it can be seen that the necessary causal connexion would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage.  The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent [act or] decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage.  Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed.  An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision.

13. It seems to me that ordinary commonsense and experience would deny that the 1999 accident materially contributed to the accidental taking of a large overdose of analgesics, some two years later, by a person who had been using analgesic medication for many years prior to the accident.  It also seems to me that the death, through the taking of the overdose by a person who had been a long‑standing user of analgesic medication, was caused solely by the abuse of that medication, in circumstances in which

the abuse (as opposed to the taking of the medication) was not directly or indirectly contributed to by the negligence of the appellant.

1. It consequently seems to me that, had the trial judge considered these issues, he could only have properly concluded that the appellant was not liable for the death of the deceased.

2. It follows that the appeal should be allowed and that the judgment of the trial judge should be set aside.

Grounds 3 and 4

1. The conclusions at which I have arrived in respect of grounds 1 and 2 make it unnecessary for me to consider the remaining grounds.  However, I should say that the trial judge offered no reasons, at all, for his conclusion that the deceased was not guilty of contributory negligence.  It is difficult to know what reasons there might have been in support of that conclusion.  Even allowing for what was said by Dr Saharay to the deceased concerning the recommended dose of Oxycontin, the deceased must have known that she could not take more than three tablets over a day.  I have said that the evidence established that the contents of her stomach at the time of autopsy were consistent with a substantial overdose of Oxycontin tablets, notwithstanding that she had repeatedly been warned about the abuse of prescription drugs.  I have also said that the overdose occurred at a time when other drugs had been ingested.  In my respectful opinion, there could be no doubt that the taking of so substantial an overdose, together with other drugs, amounted to contributory negligence on the part of the deceased.

Conclusion

1. I would allow the appeal, set aside the judgment of the trial judge and substitute, in lieu, a decision dismissing the respondent's claim against the appellant.

2. BUSS JA:  I agree with the President.

3. MILLER JA:  I agree with Steytler P.