Powney v Kerang and District Health

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0150
WAYNE GEOFFREY POWNEY	Appellant
v
KERANG AND DISTRICT HEALTH	Respondent

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JUDGES:	OSBORN and BEACH JJA and FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 August 2014
DATE OF JUDGMENT:	11 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 221
JUDGMENT APPEALED FROM:	Powney v Kerang and District Health (Unreported, County Court of Victoria, Judge Parrish, 19 September 2013)

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NEGLIGENCE – Causation – Allegedly negligent medical treatment causing personal injury – Jury trial – Factual causation – Necessary condition of the occurrence of harm – Scope of liability – Whether negligence cannot be established as a necessary condition of the occurrence of harm – Whether appropriate for jury to determine s 51(2) issue – Whether defendant negligent – Whether negligence caused injury – Whether evidentiary gap bridged – Why responsibility for harm should be imposed where factual causation cannot be established – Whether an appropriate case – Whether in accordance with established principles – Importance of pleadings – Wrongs Act 1958, pt X, ss 51, 51(2), 52.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C P Locke with Mr G Boas	Arnold Dallas McPherson
For the Respondent	Mr A N Murdoch QC with Ms P R Riddell	Minter Ellison

OSBORN JA
BEACH JA
J FORREST AJA:

Introduction

This appeal raises two questions:

(a) how s 51(2) – the ‘evidentiary gap provision’ – of the Wrongs Act 1958 (‘the Act’) is to be applied in negligence cases in this state; and

(b) whether a jury has any role to play in determining questions of causation under s 51(2).

Under the Act, the common law ‘but for’ test remains the test for ‘factual causation’. However, in an ‘appropriate case’ where factual causation cannot be proven, s 51(2) permits a court to hold a defendant liable for the harm sustained by the plaintiff, provided the court is satisfied that the responsibility for the harm should be imposed on the negligent party.

The appellant, Wayne Powney, filed a claim in the County Court against the respondent, Kerang & District Health, which managed the Kerang Hospital. Mr Powney’s claim related to his treatment at the hospital in August 2008. The trial was heard in September 2013 in Melbourne before a jury of six.

There were two components to his case in negligence. First, that he had been given a pethidine injection with an uncapped and unsterile needle. This, it was said, resulted in the development of infection in his left arm. Second, that the hospital staff failed to respond to his complaints of pain in his arm, said to be the consequence of the infection.

At the conclusion of the evidence, the trial judge ruled that the jury was confined to determining factual causation under s 51(1) of the Act and, contrary to the submissions made by the appellant’s counsel, not to the consideration of the matters set out in s 51(2). Ultimately, the jury found for the respondent and judgment was entered in its favour.

On appeal, Mr Powney argued that all parts of s 51(2) should have been determined by the jury and the trial judge was wrong to not permit the jury to consider the matters contained in the subsection.

For the reasons that follow, we consider the judge was correct in refusing to permit the jury to consider the requirements of s 51(2), and it was appropriate to direct the jury to determine only the issue of the factual causation.

Summary of background facts

The appellant was 56 years old at the time of trial and lived in northern Victoria.

At about 7:00 am on 20 August 2008, he was admitted as a patient at the Kerang Hospital for the purpose of undergoing palatoplasty (what is commonly known as nasal surgery). The Kerang Hospital was operated by and under the control of the respondent.

The surgery was performed between 10:15 am and 10:45 am on 20 August 2008. Subsequently, the appellant experienced pain in his nose. At 4:00 pm the appellant was given an injection of pethidine, which is the basis of the complaint in this case.

The appellant had no recollection of his inpatient stay at the hospital. He was discharged from the hospital at approximately midday on 21 August 2008.

Over the next few days, the appellant developed a severe infection in his left upper arm, which progressed to septicaemia with a significant abscess in the arm. On 24 August, the appellant, owing to ongoing symptoms in his left arm, was admitted to the Bendigo Base Hospital with a high fever. The abscess subsequently required surgical drainage, which was carried out on 2 September. He was discharged the following day.

In August 2011, the appellant commenced proceedings claiming damages from the respondent. He alleged that the infection led to him suffering a significant permanent injury to his left arm with an associated psychiatric condition.

The trial

The trial commenced at Melbourne[1] on 3 September 2013 before Judge Parrish and a jury of six.
[1]It was never explained why this case was heard in Melbourne. The appellant lived in northern Victoria, as did his lay witnesses. The defendant controlled the Kerang Hospital. The trial should have been heard in Bendigo, absent good reason to the contrary.

The appellant’s case at trial was as follows. First, it was contended that at about 4:00 pm on 20 August 2008, an intramuscular injection of pethidine was injected into the appellant’s left arm by a nurse in a negligent manner. Second, it was alleged that the respondent’s staff failed to act on the appellant’s complaints that he was suffering pain and symptoms in his left arm.

The respondent accepted that an intramuscular injection given to the appellant by its staff in the course of his stay (during which there were five injections) was the source of the infection. However, it argued that the injection was not given negligently, but in accordance with accepted practice. In any event, the respondent contended that any alleged departures from reasonable practice were not a cause of the infection. Additionally, the respondent denied that there was any complaint of arm pain or other relevant symptoms made to its staff prior to the appellant’s discharge from the hospital. As further additional lines of defence, the respondent argued that there was insufficient time before the appellant was discharged for any symptoms of infection of the kind alleged to arise following the administration of the injection, and any failure to heed complaints was not causative of injury because any reasonable investigation at the relevant time would not have revealed anything notable.

The appellant gave evidence and called his wife, Bessina Powney; his daughter, Rebecca Powney; his niece, Rachel Powney; an infectious diseases expert, Dr Bernard Hudson; a consultant psychiatrist, Dr John Gill; and an expert in rehabilitation medicine, Professor Peter Disler.

The respondent called the nurse who administered the injection, Narelle McDonald; two of the nurses involved in the care of the appellant on the afternoon and evening of 20 August, Rosemaree Pearce and Katheryn Robinson; and a nurse and a doctor involved in the appellant’s discharge on 21 August, Nola Robinson and Dr Dianne Sherriff. Additionally, the respondent called Dr Damon Eisen, an infectious diseases expert.

Various exhibits were tendered by the parties including:

(c) the notes from Kerang Hospital concerning the appellant;

(d) a picture of a Necon Needle Containment System;

(e) a dispensing needle tray;

(f) a skin cleansing swab;

(g) a syringe with cover;

(h) two needles; and

(i) entries from the Kerang Hospital day book for 20 and 21 August 2008.

Rebecca Powney, who was 12 years old at the time, told the court that she was with her father when the nurse administered the injection. She gave evidence that the injection was brought into the room in a kidney dish, and recalled an ‘exposed needle’. She said that after coming into the appellant’s room, the nurse ‘just pretty much put it straight into his arm’.

Rachel Powney, who was 16 years old at the time, also gave evidence that the injection was brought into the room in a kidney dish. She described the injection as being ‘already made up, sitting in the dish’. She said that the needle was uncovered and did not have a wrapper on it. She also said that the nurse took the appellant’s left arm out of his pyjamas and inserted the needle.

Mrs Powney said that at about 5:00 pm on 20 August, after she arrived at the hospital, the appellant was suffering soreness in his left arm. She brought this to the attention of the relevant nursing staff. However, no examination of the appellant’s arm or other investigation was carried out.

Ms McDonald, a qualified nurse with three years’ experience, gave the injection. She had no recollection of the procedure but said that it was her usual practice to administer injections of this kind into the buttock. If not, it would be administered into the arm. It was her invariable practice to keep the cap or wrapper on the needle until it was administered.

The nurses responsible for caring for the appellant on the afternoon and evening of 20 August (Ms Pearce and Ms Robinson) gave evidence that they could not recall the appellant or the events alleged by the appellant’s witnesses. However, no complaint of pain or other relevant symptom was recorded in the hospital notes, and it was the respondent’s case that no such complaint was made at any time during the appellant’s admission to the hospital.

Mrs Powney also said that on 21 August, shortly before the appellant’s discharge from the hospital, the appellant was continuing to suffer from soreness in his left arm. Mrs Powney said that this was brought to the attention of the discharge nurse (Ms Robinson), but she did not carry out any examination or institute any other investigation. Ms Robinson, however, gave evidence based on her contemporaneous notes to effect that the appellant told her, in response to her question to him, that he was pain free. Additionally, Dr Sherriff assessed the appellant for discharge. She recorded no complaint of any arm pain or any concern over the appellant’s discharge.

The two infectious diseases experts (Dr Hudson and Dr Eisen) accepted that there is a small risk of contracting an infection from an intra-muscular injection such as the one given to the appellant, even if all due care has been taken when giving the injection.

The evidence adduced by the appellant from Dr Hudson was to the effect that the risk of infection from an intramuscular injection would have been reduced if appropriate steps had been taken in the administration of the injection. This was in contrast to the circumstances described by the appellant's witnesses as to the giving of the injection at 4:00 pm on 20 August 2008 (that is, using a needle which had been carried into the room uncapped and unsecured in a kidney dish). When cross-examined, Dr Hudson said that the risk of infection with an intra-muscular injection cannot be removed but merely reduced. He stated that the taking of reasonable precautions to minimise infection reduces the risk of infection by an extent which cannot be quantified. He accepted that he could not conclude that but for the failure to take precautions the infection would not have occurred.

Dr Eisen, the infectious diseases physician called by the respondent, gave evidence that if the injecting nurse used a needle which had been uncapped for a period of minutes, and which had been placed and transported in a kidney dish without a cap, the risk of infection would not be significantly increased. In cross-examination, Dr Eisen also stated that it would take a period of months to years for an uncapped needle to become overtly contaminated.

There was a dispute on the evidence between Dr Hudson and Dr Eisen as to the time required between the administration of an injection by which bacteria were inoculated into a patient's body and the development of clinical manifestations of infection (such as redness, localised heat and tenderness, pain, swelling and fever). Dr Eisen said it would not be less than 36 hours. Dr Hudson disagreed with the proposition that it could not be as little as one hour, and said it could be within 12 hours. This evidence was important to the determination of the issue of whether there was likely to have been complaints of arm pain prior to discharge at about 1:15 pm on 21 August 2008. It was also important in determining whether there would have been any clinical signs or symptoms at the time of discharge had the infection commenced with the injection at 4:00 pm on 20 August 2008.

Late in the afternoon on the ninth day of the trial, at the conclusion of the evidence and immediately prior to final addresses, counsel for the appellant made an unheralded oral submission to the trial judge as to the application of s 51(2):

[The] jury won’t need to go any further with [the scope of liability question] because there’s no issue about it. As for the other matters, they are all relevantly to be considered under established principles, which means established common law principles, in my submissions, given particularly the Act only affects, common law rights to the extent that it expressly does so.
So really all the jury has to do is, firstly, [s 51(2)] only comes in to play if they’re not satisfied the ‘but for’ test has failed to be satisfied, either on the direct ‘but for’ test or the material contribution approach that Justice Dixon says can be resorted to.
…
[O]nly then would you go to s 51(2), and then the question would be is this firstly an appropriate case to deal with in that way. That is a matter the jury would have to decide. I don’t know of any jurisprudence about that, Your Honour. There is nothing in the Act to define what is appropriate, but it certainly doesn’t need to [be] an exceptional case as it does in New South Wales. So the jury have to make their own value judgment whether this was an appropriate case…

The trial judge pointed out the problem of leaving it to the jury to determine what constitutes an ‘appropriate case’:

[The jury] would need guidance on that. Firstly, they’re going to ask, as anyone would ask, [what] appropriate [means]; there has to be some discrimination between a number of matters to come to what is an appropriate case, doesn’t [there]?

His Honour subsequently said in the course of this discussion:

I just find [the jury considering whether it is an appropriate case] the first difficulty. An appropriate case means by definition, does it not, it can’t be all cases? It has to be an appropriate case.

In making his case for the s 51(2) issue to be considered by the jury, counsel for the appellant continued:

[It] is important to our case, Your Honour, because if we can, in the alternative, rely on s 51(2), we want the jury to be in a position where, if they think it is an appropriate case they can have regard to the principles in Baldwin & Sons v Plane and Betts v Wittingslow, and then it no longer would be an answer – if it is an answer at all – for the defendant to say, ‘There’s a tiny but fine non-zero (sic) chance that you could’ve got this condition with proper care being taken. Therefore, a causation.’
It could be critically important on causation on the needle stick aspect of it, Your Honour … In our submission, s 51(2) should be left open, even though it is an unsatisfactory aspect of the statute. It is often the case with statutes sadly, but the jury just has to do the best they can. They can hear submissions from myself and Mr Murdoch. They decide whether it’s an appropriate case or not. If they [need] to go there. They may not need to go that far.

The following morning, counsel for the respondent contended that s 51(2) should not be put to the jury, and said that on factual causation he would put the respondent’s case as follows:

Your Honour is obviously well aware of Strong v Woolworths and paragraphs 25 and 26 of the High Court decision. So I don’t need to bring Your Honour’s attention to that. May I just inform the court and my learned friend that the way I will be dealing with this when I address the jury is to say to the jury that the plaintiff has not proven what he needs to prove in respect of causation because he hasn’t proven that what the defendant is alleged to have done wrong in relation to the injection materially increased the risk of infection.

Having researched the issue as best he could, the trial judge rejected the appellant’s submission and confined the jury’s deliberations to factual causation. His Honour did not rule in terms as to why s 51(2) was inapplicable. However, it was abundantly clear from his exchanges with counsel for the appellant that his Honour, having read the second reading speech and authorities overnight, did not consider the requirements of s 51(2) to be an issue for the jury.

Counsel for the appellant’s address to the jury on the point of causation was summarised by the trial judge as follows:

The plaintiff also submits that in the circumstances in this matter, bearing in mind that you only had to be satisfied as a matter of probability that the negligence gave rise to an increased risk of injury, bearing in mind … less than five instances where injections otherwise administered in an appropriate manner, less than five [out of sixty thousand] give rise to infection. The plaintiff says to you, considering all the evidence in this case as a matter of probability, you should so find that the failure to comply with the protocol about the capping of the injection and the kidney bowl, materially gives rise to an increase, or gives rise to a material increase in the risk of injury.

His Honour’s direction to the jury on causation was in the following terms:

There may be many causes and all the plaintiff must satisfy you of on the balance of probabilities is that the defendant’s negligence was a cause of the injury, loss and damage of which the plaintiff complains. As a matter of law, however, before you can be satisfied that the negligent act or omission by the defendant, in this case the act of the way the injections are administered, or the omission in relation to the response of the complaints, was a cause of the harm suffered by the plaintiff.
You need to be satisfied that without the negligent act or omission the harm would probably not have occurred. The lawyers call this the ‘but for’ test. Unless you can say but for the negligence (and I am using that composite phrase to describe the injection and/or the complaints), the harm would probably not have occurred, you cannot say the negligence was a cause of the harm.
Another way of putting that test is that if you are satisfied that the negligence, whether it be the injection episode or the complaints, materially increased the risk of injury, being the subsequent infection and treatment, that is satisfaction of the test. To take an example away from the case, you might conclude that ‘but for’ a driver’s negligence in texting on his phone whilst driving he probably would not have driven into a pedestrian, thus his negligence caused the pedestrian’s injuries.

After the 12 day trial, the jury returned its verdict as follows:

Was there any negligence on the part of the defendant, its servants or agents which was a cause of injury, loss and damage to the plaintiff? - - - No.

It may be observed here that the ‘rolled up’ question did not distinguish between the two discrete allegations of negligence, nor the associated questions of causation related to each allegation.

On 19 September 2013, judgment was entered for the respondent in accordance with the verdict of the jury.

The grounds of appeal

The appellant’s grounds of appeal are as follows:[2]

1.His Honour erred in law by failing and refusing to give a direction to the jury in accordance with Section 51(2) of the Wrongs Act 1958 that, if negligence of the Defendant was not established to be a necessary condition of the occurrence of harm to the Plaintiff, negligence on the part of the Defendant that cannot be established as a necessary condition of the occurrence of such harm could be taken to establish factual causation if it was an appropriate case to do so.
2.Further or in the alternative, his Honour erred in law by failing and refusing to give a direction to the jury as to whether, in the event that the negligence of the Defendant was not established to be a necessary condition of the occurrence of harm to the Plaintiff, it was an appropriate case in which negligence that cannot be established as a necessary condition of the occurrence of the harm alleged to have been suffered by the plaintiff should be taken to establish factual causation.[3]

[2]While the appellant’s notice of appeal contained a third ground dealing with an unrelated matter, this was not pursued at the hearing.

[3] Notice of Appeal dated 3 October 2013.

In addressing this appeal, it is necessary to examine the antecedents to the enactment of s 51(2): the recommendations of the 2002 Review of the Law of Negligence: Final Report (the ‘Ipp Report’),[4] subsequent parliamentary materials, and several important decisions in the United Kingdom.
[4]Treasury, Law of Negligence Review Panel, D A Ipp (chair), Review of the Law of Negligence: Final Report, (2002).

Recommendations of the Ipp Report and their enactment

In 2001, the Commonwealth and the states appointed a panel, chaired by the Honourable David Ipp (at the time, a Judge of Appeal of the Supreme Court of New South Wales), to review the law of negligence. Its report made a series of extensive and far-reaching recommendations concerning the law of negligence in this country. These recommendations were translated into legislation in each state — much of which is common.

In this state, the result was the enactment of pts X – XII of the Act.[5]
[5]These provisions came into force by passage of the Wrongs and Other Acts (Law of Negligence) Act 2003.

In relation to causation, the Ipp Report recommended the codification of the ‘but for’ test, which asks whether the harm would have occurred ‘but for’ the defendant’s conduct. In Victoria, this took the form of s 51(1)(a) of the Act — described in the subsection as ‘factual causation’. It also recommended a second limb dealing with scope of liability, which became s 51(1)(b) of the Act. This question looks at whether it is appropriate for the scope of the negligent person’s liability to extend to the harm caused by the negligent act or omission.[6]
[6]Mirrored in legislation in other states.

The Ipp Report dealt at some length with the issue raised in this appeal — that of the ‘evidentiary gap’:

7.27… [T]here are several issues that have arisen in this context that are currently the cause of considerable controversy. One is the problem of what have been called ‘evidentiary gaps’. The cases identify two types of situation in which an evidentiary gap may exist.
7.28One involves harm which is brought about by the cumulative operation of two or more factors, but which is indivisible in the sense that it is not possible to determine the relative contribution of the various factors to the total harm suffered. This was the situation in the English case of Bonnington Casting v Wardlaw, which lays down the principle that any of the contributory factors can be treated as a cause of the total harm suffered, provided it made a ‘material contribution’ to the harm. The effect of this rule is that a defendant may be liable for the total harm suffered by a plaintiff even though it cannot be said that, but for the conduct of the defendant, the plaintiff would not have suffered the total harm; and that it can only be said that but for the conduct of the defendant the plaintiff would not have suffered some of that harm.[7]

[7]Ipp Report, 109–110 (citations omitted) (emphasis in original).

The Ipp Report then deals with a second type of case – described as the ‘Fairchild case’ — a reference to the case Fairchild v Glenhaven Funeral Services Ltd in which scientific evidence could not determine at what point the plaintiff contracted mesothelioma after successive exposures to asbestos.[8]
[8] Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 (‘Fairchild’).

The Ipp Report contains the following in relation to the implementation of a provision that would ‘bridge the evidentiary gap’:

7.31The ‘material contribution to harm’ and ‘material contribution to risk’ principles both allow negligent conduct to be treated as a factual cause of harm even though it cannot be proved on the balance of probabilities that there was in fact a causal link between the conduct and the harm. In other words, in certain circumstances, it may be appropriate to ‘bridge the evidentiary gap’ by allowing proof that negligent conduct materially contributed to harm or the risk of harm to satisfy the requirement of proof of factual causation.
7.32The Panel’s opinion is that, in certain types of cases, bridging the evidentiary gap in this way would be widely considered to be fair and reasonable. The decisions in Bonnington Castings and Fairchild support this conclusion, as does the practice of the New South Wales Dust Diseases Tribunal which, apparently, has felt itself able to deal with such cases by taking a ‘robust and pragmatic’ approach to factual causation in cases where the scientific evidence about causation has not provided a solid basis for finding that the ‘but for’ test has been satisfied.[9]

[9]Ipp Report, 110–111 (citations omitted).

The panel went on to make the following recommendation:

Recommendation 29
The Proposed Act should embody the following principles:
Onus of proof
(a)The plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

The two elements of causation
(b)The question of whether negligence caused harm in the form of personal injury or death (‘the harm’) has two elements:
(i)‘factual causation’, which concerns the factual issue of whether the negligence played a part in bringing about the harm; and
(ii)‘scope of liability’ which concerns the normative issue of the appropriate scope of the negligent person’s liability for the harm, once it has been established that the negligence was a factual cause of the harm. ‘Scope of liability’ covers issues, other than factual causation, referred to in terms such as ‘legal cause’, ‘real and effective cause’, ‘commonsense causation’, ‘foreseeability’ and ‘remoteness of damage’.

Factual Causation
(c)The basic test of ‘factual causation’ (the ‘but for’ test) is whether the negligence was a necessary condition of the harm.
(d)In appropriate cases, proof that the negligence materially contributed to the harm or the risk of the harm may be treated as sufficient to establish factual causation even though the but for test is not satisfied.
(e)Although it is relevant to proof of factual causation, the issue of whether the case is an appropriate one for the purposes of (d) is normative.
(f)For the purposes of deciding whether the case is an appropriate one (as required in (d)), amongst the factors that it is relevant to consider are:
(i)whether (and why) responsibility for the harm should be imposed on the negligent party, and
(ii)whether (and why) the harm should be left to lie where it fell.

(g)
(i)For the purposes of sub-paragraph (ii) of this paragraph, the plaintiff’s own testimony, about what he or she would have done if the defendant had not been negligent, is inadmissible.
(ii)Subject to sub-paragraph (i) of this paragraph, when, for the purposes of deciding whether allegedly negligent conduct was a factual cause of the harm, it is relevant to ask what the plaintiff would have done if the defendant had not been negligent, this question should be answered subjectively in the light of all relevant circumstances.[10]

[10]Ipp Report, 117–118.

Of importance to this appeal, the Ipp Report explored the potential issues surrounding determination of the type of cases to which an evidentiary gap provision may apply.

7.33The major difficulty with the ‘material contribution to harm’ and ‘material contribution to risk’ approaches is to define those cases in which the normal requirements of proof of causation should be relaxed. It is extremely important to note that this is a normative issue that depends ultimately on a value judgment about how the costs of injuries and death should be allocated. The Panel believes that detailed criteria for determining this issue should be left for common law development. Nevertheless, we consider that it would be useful to make explicit the normative character of the issue by including in the Proposed Act a provision that, in deciding whether proof that conduct that materially contributed to, or materially increased the risk of, harm should suffice as proof of causal connection, it is relevant to consider whether (and why) responsibility for the harm should be imposed on the negligent party, and whether (and why) the harm should be left to lie where it fell (that is, on the plaintiff) (see paragraph (f) of Recommendation 29).[11]

[11] Ipp Report, 111 (emphasis added).

Recommendations 29(d)-(f) were incorporated into each state’s existing legislative framework in various ways;[12] in Victoria, as s 51(2) of pt X of the Act.[13]
[12]Civil Liability Act 2002 (NSW) s 5D(2); Civil Liability Act 2003 (Qld) s 11(2); Civil Law (Wrongs Act) 2002 (ACT) s 45(2); Civil Liability Act 2002 (Tas) s 13(2); Civil Liability Act 2002 (WA) s 5C(2); Civil Liability Act 1936 (SA) s 34(2).
[13]The new provisions came into force in 2003, in accordance with the Wrongs and Other Acts (Law of Negligence) Act 2003.

Not all states’ analogous provisions contain the reference to an ‘appropriate case’. Section 5D(2) of the Civil Liability Act 2002 (NSW), which is, in substance, identical to s 51(2) of the Act, refers to an ‘exceptional’ rather than ‘appropriate’ case.

South Australia and Australian Capital Territory adopted a different approach to that of Victoria and New South Wales. In South Australia, s 34(2) of the Civil Liability Act 1936 (SA) sets out the situations in which an alternative to the ‘but for’ test can be used, rather than referring to an ‘appropriate’ or ‘exceptional’ case, in the following terms:

(2)Where, however, a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different persons (the defendants) and it is not possible to assign responsibility for causing the harm to any one or more of them—
(a)the court may continue to apply the principle under which responsibility may be assigned to the defendants for causing the harm; but
(b) the court should consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.

The equivalent section under the Civil Law (Wrongs Act) 2002 (ACT), s 45(2), is a near mirror of the South Australian legislation.

In this State, in the course of the Second Reading Speech, the then Treasurer, Mr John Brumby, set out the purpose of s 51(2):

New section 51 sets out general principles that apply in respect of causation. New section 51(2) deals with claims where there is an evidentiary gap in factual causation. For example, an evidentiary gap exists in a case where a person has been exposed to a similar risk of harm by a number of different defendants and it is not possible to assign responsibility to any one of those defendants.
New section 51(2) provides that in deciding whether to bridge an evidentiary gap in an appropriate case the court must consider, amongst other relevant things, and in accordance with established principles, whether or not and why responsibility for the harm should be imposed on a particular defendant.[14]

[14]Victoria, Parliamentary Debates, Legislative Assembly, 30 October 2003, 1427 (John Brumby).

The Explanatory Memorandum to the Wrongs and Other Acts (Law of Negligence) Bill provides further insight into the intention underlying s 51(2):

Section 51(2) provides that in an appropriate case, where negligence cannot be said to be a necessary condition of the harm, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. An ‘appropriate case’ is one where the court considers it appropriate to ‘bridge the evidentiary gap’.
Evidentiary gaps arise in two types of cases:
· where the harm is brought about by the cumulative operation of two or more factors, but which is indivisible, so that it is not possible to determine the relative contribution to the harm. This is also referred to as material contribution to the harm;
· where the defendant’s negligent conduct materially increased the risk to the plaintiff. This category includes cases where there have been successive periods of exposure to a dangerous substance, such as a dangerous chemical and the plaintiff has been exposed on a number of different occasions. This is also referred to as material contribution to the risk. (see Ipp Report paragraphs 7.28 to 7.32)
In these cases, it cannot be said that a specific factor or set of factors, for which the defendant(s) is (are) responsible, is the factual cause of the harm to the defendant (ie the negligence was not a necessary condition of the occurrence of the harm). Despite this, in appropriate cases the court has considered that bridging the evidentiary gap is fair and reasonable (Bonnington Castings v Wardlaw [1956] AC 613; Fairchild v Glenhaven [2002] 1 WLR 1052; McDonald v State Rail Authority (1998) 16 NSWCCR 695). It is not intended to limit the circumstances of where the court will consider it appropriate to bridge the evidentiary gap.
Where it is being considered whether or not to ‘bridge the evidentiary gap’, the court is to consider, amongst other relevant things, the value judgement of, whether or not and why responsibility for the harm should be imposed on the negligent party.[15]
[15]Explanatory Memorandum, Wrongs and Other Acts (Law of Negligence) Bill 2003 (Vic) 4-5.

Causation decisions in the United Kingdom: Bonnington Castings and Fairchild

There are two lines of authority relevant to this appeal — each of which was considered by the panel in the Ipp Report. The first is that which commenced with the decision of the House of Lords in Bonnington Castings Ltd v Wardlaw.[16]
[16] [1956] AC 613 (‘Bonnington Castings’).

In that case, the plaintiff developed pneumoconiosis due to silica dust exposure in the course of his employment. It had been established that the dust came from two sources, but only for one of which the defendant could be held liable. The House of Lords held that so long as the ‘guilty’ dust made a material contribution to the causative body of duty, it could be taken to have materially contributed to the disease. This was considered sufficient to establish causation; the ‘guilty dust’ does not need to be the sole or even the more substantial cause.

Bonnington Castings has been accepted and applied in the United Kingdom and in Australia.[17]
[17]See, in Australia for example, Hunt & Hunt Lawyers v Mitchell Morgan Nominees PtyLtd (2013) 247 CLR 613, 635 [45]; Amaca Pty Ltd v Booth (2011) 246 CLR 36, 62 [70]; Henville v Walker (2001) 206 CLR 459, 493 [106]; Chappel v Hart (1998) 195 CLR 232, 244 [27]; Bennett v Minister of Community Welfare (1992) 176 CLR 408, 428.

However, the second of these cases, Fairchild,[18] has not been so readily adopted.[19] This case involved a number of sufferers of mesothelioma who had contracted the disease after being exposed to asbestos dust by a number of different employers over the course of many years. It was not possible to establish whether the disease was caused by a single asbestos fibre or an accumulation of fibres; therefore, the claimants could not prove on the balance of probabilities that the particular exposure was involved in causing their conditions.
[18][2003] 1 AC 32.
[19]See Evans v Queanbeyan City Council [2011] NSWCA 230, [20]–[22].

The House of Lords held that in a case of this nature a material increase in risk of injury alone linked to the wrongful act was sufficient to establish liability. This became what is known (and accepted) in subsequent UK cases as the ‘Fairchild exception’.[20] It resulted in the development of a special rule of causation being applied in mesothelioma cases by virtue of the lack of knowledge of the biological cause of the disease. In the UK, it has since been supplemented by a statutory regime.[21] It may be added that there have been considerable advances in the knowledge of mesothelioma and its aetiology since Fairchild[22] was decided.[23]
[20]See also Barker v Corus UK Ltd; Murray v British Shipbuilders (Hydrodynamics) Ltd; Patterson v Smiths Dock Ltd [2006] 2 AC 572; Sienkiewicz v Greif (UK) Ltd; Willmore v Knowsley Metropolitan Borough Council [2011] 2 AC 229.
[21]Compensation Act 2006 (UK) c 29.
[22][2003] 1 AC 32.
[23]Sienkiewicz v Greif (UK) Ltd; Willmore v Knowsley Metropolitan Borough Council [2011] 2 AC 229.

The scheme of Part X of the Act

Although this appeal is concerned with the application of s 51(2), we think it helpful to examine, in addition to that subsection, other provisions of pt X of the Act, to provide the context in which this provision operates.

The first point to note is that pt X does not cover all claims in negligence.[24] In particular, it does not apply to dust disease related conditions (surprisingly, in the light of the antecedents of s 51(2)).[25] It also excludes transport accidents and industrial accidents from its operation.[26] Causes of action arising out of these types of cases are governed by the common law and any relevant statutory limitation.[27]
[24]Wrongs Act 1958 s 45(1).
[25]Ibid s 45(1)(e).
[26]Ibid ss 45(1)(a),(b) and (c).
[27]For example, Transport Accident Act 1986 and Accident Compensation Act 1985 .

Part X is directed to ‘the law of negligence’, notwithstanding the fact that the Act does not govern questions of duty of care, but rather (as relevant to this case) those of breach and causation.[28] The criteria for establishing breach of duty and causation are found in divs 2 and 3 respectively. Other divisions within this part concern contributory negligence, awareness of risk, negligence of professionals and persons professing particular skills, non-delegable duties, and vicarious liability.
[28]Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 432-433 [13]-[14].

In any proceeding governed by pt X, it is essential at the outset to identify the relevant risk of harm. It is not necessary in the context of this appeal to say any more about on this issue other than that it seems implicit that the parties treated it as being the development of the infection as the consequence of the use of a non-sterile needle.

Sections 48 and 49 identify the relevant tests that must be satisfied to establish breach of a duty of care.[29] In this case the appellant had to prove that:
[29]Section 48(3) expands upon what is an insignificant or not insignificant risk:
(3) For the purposes of subsection (1)(b)—
(a)insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and
(b)risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.

(j) the risk of harm was foreseeable (s 48(1)(a)); and

(k) the foreseeable risk of harm was not insignificant (s 49(1)(b)); and

(l) in the circumstances, a reasonable trained nurse in Ms McDonald’s position would have taken precautions to avoid or minimise that risk – leaving the cap on the needle until immediately prior to the injection being administered (s 48(1)(c)) — and Ms McDonald failed to do so.

Section 48(2) expands upon the determination of ‘what precautions a reasonable person would take, requiring a court to consider the following matters (as well as any other matters that may be relevant):

(m) the probability that the harm would occur if care were not taken;

(n) the likely seriousness of the harm;

(o) the burden of taking precautions to avoid the risk of harm;

(p) the social utility of the activity that creates the risk of harm.

Assuming the breach provisions are satisfied, the next step in the analysis is to determine whether the causation provisions within div 3 of pt X are satisfied.

The causation provisions – Division 3

Sections 51 and 52 of the Act, with which this appeal is concerned, provide as follows:

51. General Principles
(1)A determination that negligence caused particular harm comprises the following elements –
(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered the harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in light of all the relevant circumstances.
(4)For the purpose of determining the scope of the liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

52. Burden of Proof
In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.

The High Court examined the cognate provisions of the New South Wales legislation, ss 5D and 5E of the Civil Liability Act 2002 (NSW), in Adeels Palace Pty Ltd v Moubarak,[30] Strong v Woolworths Ltd[31] and Wallace v Kam.[32]
[30] Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 (‘Adeels Palace’)
[31]Strong v Woolworths Ltd (2012) 246 CLR 182 (‘Strong’).
[32]Wallace v Kam (2013) 250 CLR 375 (‘Wallace’).

It has been emphasised that the primary causation provisions of the Civil Liability Act2002 (NSW) (and therefore of the Victorian Act) require two separate inquiries:

(q) Causation: that the breach was a ‘necessary condition’ of the harm (the statutory ‘but for’ test), described as factual causation;[33] and

(r) Scope of liability: whether the defendant should be held responsible for the harm suffered by the plaintiff.[34]

[33]Civil Liability Act 2002 (NSW) s 5D(1)(a); Wrongs Act 1958 s 51(1)(a).

[34]Civil Liability Act 2002 (NSW) s 5D(1)(b); Wrongs Act 1958 s 51(1)(b).

Section 51(2) — the provision the subject of the appeal — is intended to enable a court to find causation is made out in certain cases where the plaintiff cannot satisfy the first test (that of factual causation).

Factual causation

In Wallace, the High Court said of the factual causation test:

The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.[35]

[35](2013) 250 CLR 375, 383 [16]. See also Strong (2012) 246 CLR 182, 190 [17]; Adeels Palace (2009) 239 CLR 420, 440 [45].

The Court also said of the distinction between questions of factual causation and scope of liability:

The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (among other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.[36]

[36]Ibid 383 [14]. See also Adeels Palace (2009) 239 CLR 420, 440 [42]; Strong (2012) 246 CLR 182, 191 [19].

We should also mention here that in Strong, the High Court considered the application of the factual causation test in circumstances where more than one set of conditions was necessary for the occurrence of the harm. The majority explained that:

Under the statute, factual causation requires proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant’s negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant’s conduct may be described as contributing to the occurrence of the harm.[37]
[37](2012) 246 CLR 182, 191-192 [20] (citations omitted). See also Amaca Pty Ltd v Booth (2011) 246 CLR 36.

Scope of liability

Under the common law, the March v Stramare[38] test effectively dealt with scope of liability and factual causation as one: part of the ‘common sense’ approach to causation. Accordingly, in common law trials prior to the introduction of pt X, scope of liability was a relevant but rarely encountered concept.[39]
[38]March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506, 515 [53] quoting from Fitzgerald v Penn (1954) 91 CLR 268 at 277. See Adeels Palace (2009) 239 CLR 420, 440 [43]–[44].
[39]See Henville v Walker (2001)206 CLR 459, 491 [100]; Paul v Cooke [2012] NSWSC 840 [57]–[63].

However, s 51(1)(b) mandates a different approach. The High Court in Strong said:

The division of the causal determination under the statute into the distinct elements of factual causation and scope of liability is in line with the recommendations in the Final Report of the Committee convened to review the law of negligence (‘the Ipp Report’). The authors of the Ipp Report acknowledged their debt to Professor Stapleton's analysis in this respect. The policy considerations that inform the judgment of whether legal responsibility should attach to the defendant’s conduct are the subject of the discrete “scope of liability” inquiry.[40]

[40] (2012) 246 CLR 182, 191 [19] (emphasis added).

Section 51(4) of the Act also addresses the question of scope of liability and provides that in assessing scope of liability, a court is required to consider ‘(amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party’.[41]
[41] Perhaps the most illuminating example of scope of liability denying responsibility after a positive ‘but for’ result is to be found in Lord Hoffmann’s speech in Banque Bruxelles Lambert SA v Eagle Star Insurance Ltd [1997] AC 191. Lord Hoffmann used the following example at 213: A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.

Accordingly, in cases under pt X of the Act, the application of s 51(1)(b) requires not only that this issue be dealt with separately but also that a court makes a value judgment based on precedent and policy considerations, which may limit the liability of a person found to be responsible under the factual causation test. In Wallace, the High Court said:

In a case falling within an established class, the normative question posed by s 5D(1)(b) is properly answered by a court through the application of precedent. Section 5D guides but does not displace common law methodology. The common law method is that a policy choice once made is maintained unless confronted and overruled.
In a novel case, however, s 5D(4) makes it incumbent on a court answering the normative question posed by s 5D(1)(b) explicitly to consider and to explain in terms of legal policy whether or not, and if so why, responsibility for the harm should be imposed on the negligent party. What is required in such a case is the identification and articulation of an evaluative judgment by reference to ‘the purposes and policy of the relevant part of the law’. Language of ‘directness’, ‘reality’, ‘effectiveness’ or ‘proximity’ will rarely be adequate to that task. Resort to ‘common sense’ will ordinarily be of limited utility unless the perceptions or experience informing the sense that is common can be unpacked and explained.[42]

[42](2013) 250 CLR 375,385 [22]–[23] (citations omitted) (emphasis added). See also Adeels Palace (2009) 239 CLR 420, 443 [54].

Accordingly, factual causation may be displaced where there is no true connection between the event and the alleged wrong – for example, placing the plaintiff in the path of a danger that is unconnected with the tortious act. However, the important proposition for this appeal is that whilst factual causation is an issue for the tribunal of fact (in this case, the jury), the exercise under s 51(1)(b) is for the court (namely, the trial judge), which must make a normative judgment of the circumstances surrounding the infliction of the harm, taking into account precedent and policy as required by s 51(4) and explain that judgment.

Section 51(2) – should the jury have considered the evidentiary gap provision?

In Adeels Palace, the High Court said of s 5D(2) of the Civil Liability Act 2002 (NSW), (which refers to an ‘exceptional’ rather than ‘appropriate’ case):

Section 5D(2) makes provision for what it describes as ‘an exceptional case’. But the Act does not expressly give content to the phrase ‘an exceptional case’. All that is plain is that it is a case where negligence cannot be established as a necessary condition of the harm; the ‘but for’ test of causation is not met. In such a case the court is commanded ‘to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party’. But beyond the statement that this is to be done ‘in accordance with established principles’, the provision offers no further guidance about how the task is to be performed. Whether, or when, s 5D(2) is engaged must depend, then, upon whether and to what extent ‘established principles’ countenance departure from the ‘but for’ test of causation.
At once it must be recognised that the legal concept of causation differs from philosophical and scientific notions of causation. It must also be recognised that before the Civil Liability Act and equivalent provisions were enacted, it had been recognised that the ‘but for’ test was not always a sufficient test of causation. But as s 5D(1) shows, the ‘but for’ test is now to be (and has hitherto been seen to be) a necessary test of causation in all but the undefined group of exceptional cases contemplated by s 5D(2).
Even if the presence of security personnel at the door of the restaurant might have deterred or prevented the person who shot the plaintiffs from returning to the restaurant, and even if security personnel on the floor of the restaurant might have been able to intervene in the incident that broke into fighting in time to prevent injury to anyone, neither is reason enough to conclude that this is an ‘exceptional case’ where responsibility for the harm suffered by the plaintiffs should be imposed on Adeels Palace. To impose that responsibility would not accord with established principles.
It may be that s 5D(2) was enacted to deal with cases exemplified by the House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd, where plaintiffs suffering from mesothelioma had been exposed to asbestos in successive employments. Whether or how s 5D(2) would be engaged in such a case need not be decided now.[43]

[43](2009) 239 CLR 420, 443 [54]–[57] (citations omitted).

In Strong[44], the High Court again examined this provision. The majority[45] observed that this additional route to establishing causation appeared to be designed to address two situations in which causation could not be established applying the ‘necessary condition’ test, namely:[46]

(s) Bonnington Castings[47] type cases, which involve ‘the cumulative operation of factors in which the contribution of each factor to that harm is unascertainable’;[48] and

(t) Fairchild[49] type cases, which involve ‘negligent conduct that materially increases the risk of harm in circumstances in which the state of scientific or medical knowledge makes it impossible to prove the cause of the plaintiff’s harm’.[50]

[44](2012) 246 CLR 182.

[45]French CJ, Gummow, Crennan and Bell JJ.

[46]These ‘two types’ of cases were identified in United Kingdom dust disease cases decided under the common law.

[47][1956] AC 613.

[48]Strong (2012) 246 CLR 182, 193–194 [25] (citations omitted).

[49][2003] 1 AC 32.

[50]Strong (2012) 246 CLR 182, 193–194 [25].

Therefore, it can be accepted that s 51(2) is a recognition by the legislature that in certain cases the ‘but for’ test may produce anomalous or unjust results and a court may, in an appropriate case, ‘bridge the evidentiary gap’.

For the following reasons, it is clear, in our view, that the trial judge was correct in rejecting the appellant’s counsel’s submission that the jury determine the issues raised by s 51(2).

First, an appropriate case is to be determined ‘in accordance with established principles’. An analysis of the established principles, as required by the subsection, could only occur by judicial scrutiny of authority and a determination as to whether the appellant was able to rely on the provisions of the section. Similarly, only judicial scrutiny can resolve the operative part of s 51(2) – namely, ‘whether or not and why responsibility for the harm’ should be imposed on the negligent party. It is worth repeating a portion of the extract from Adeels Palace at [81] above in relation to s 5D(2) of the Civil Liability Act 2002 (NSW):

Whether, or when, s 5D(2) is engaged must depend, then, upon whether and to what extent ‘established principles’ countenance departure from the ‘but for’ test of causation.[51]

[51](2009) 239 CLR 420, 443 [54].

And in Strong, the court said:

Whether negligent conduct resulting in a material increase in risk may be said to admit of proof of causation in accordance with established principles under the common law of Australia has not been considered by this Court. Negligent conduct that materially contributes to the plaintiff’s harm but which cannot be shown to have been a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation, subject to the normative considerations to which s 5D(2) requires that attention be directed.[52]

And subsequently:

The determination of factual causation under s 5D(1)(a) is a statutory statement of the ‘but for’ test of causation: the plaintiff would not have suffered the particular harm but for the defendant’s negligence. While the value of that test as a negative criterion of causation has long been recognised, two kinds of limitations have been identified. First, it produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff's harm. Secondly, it does not address the policy considerations that are bound up in the attribution of legal responsibility for harm.[53]

[52](2012) 246 CLR 182, 194 [26] (citations omitted) (emphasis added); also cited in Settlement Group v Purcell Partners [2013] VSCA 370, [100] (Dixon AJA).

[53]Ibid 190 [18] (citations omitted) (emphasis added).

And, finally, in Wallace the High Court adopted what was said by Allsop P in the New South Wales Court of Appeal:

[T]he task involved in s 5D(1)(a) is the elucidation of the factual connection between the negligence (the relevant breach of the relevant duty) and the occurrence of the particular harm. That task should not incorporate policy or value judgments, whether referred to as ‘proximate cause’ or whether dictated by a rule that the factual inquiry should be limited by the relationship between the scope of the risk and what occurred. Such considerations naturally fall within the scope of liability analysis in s 5D(1)(b), if s 5D(1)(a) is satisfied, or in s 5D(2), if it is not).[54]

[54](2013) 250 CLR 375, 383, [15] (emphasis added), referring to Wallace v Kam [2012] NSWCA 82, [4].

It was therefore the trial judge’s function (not that of the jury as the trier of fact) to determine what was, or was not, an appropriate case to impose liability on the defendant. In doing so, the trial judge would have regard not only to the facts of the case but also to the terms of the section as informed by the rest of the legislation and relevant extrinsic materials (such as the Ipp Report, the Second Reading Speech and the Explanatory Memorandum). Moreover, significant questions of precedent and policy may be raised for consideration by the Court in this analysis.

So, in a Bonnington Castings[55] type of case, this consideration would involve analysis of the nature and degree of exposure; the difficulties in attributing responsibility to one or more of the alleged tortfeasors; decisions of other courts on similar factual situations and, presumably, any policy implications resulting from such a finding.
[55][1956] AC 613.

It follows that the exercise under s 51(2) requires a normative judgment to be made by the trial judge — not the jury.

This result is consistent with the approach endorsed by the High Court in relation to the application of a normative test as required by the scope of liability provisions, 51(1)(b) and s 51(4).[56]
[56]See [79]–[80] above.

Further, this approach conforms with the intentions of the legislature, which clearly regarded it as a task of the judicial officer to consider whether the evidentiary gap should be bridged by recourse to s 51(2), as the paragraphs of the Second Reading Speech and Explanatory Memorandum demonstrate:

[T]he court is to consider, amongst other relevant things, the value judgement of, whether or not and why responsibility for the harm should be imposed on the negligent party.[57]

[57]Explanatory Memorandum, Wrongs and Other Acts (Law of Negligence) Bill (Vic) 4. See [55]–[56] above.

This proposition is also consistent with the observations made in the Ipp Report as to the making of ‘a value judgment about the allocation of costs of injuries and death’ in determining whether to impose responsibility on a negligent party. Of course, factual causation (the requirements of s 51(1)) remains within the province of the trier of fact — in this case, the jury. On the other hand, however, identifying the circumstances in which s 51(2) (or, for that matter, s 51(1)(b)) might be engaged was a task for the judge. On this basis alone, the trial judge was clearly correct in leaving only the question of factual causation to the jury.

We would add that neither at the trial nor on appeal did the appellant submit that the trial judge ought to resolve the s 51(2) point.

Second, to engage s 51(2) it must be determined that negligence ‘cannot be established as a necessary condition of the occurrence of the harm’ for the purpose of factual causation. Accordingly, in this case, it was necessary for the Court to be satisfied that the appellant was unable to establish factual causation under s 51(1)(a) prior to s 51(2) being engaged. However, this was not the way counsel for the appellant put his client’s case at trial. Counsel went to the jury on the basis that factual causation was established by a mix of factors, not limited to just that of the increased risk of injury. As we will discuss in a moment, this approach is consistent with authority.

Third, we think it clear, contrary to the submissions of appellant’s counsel, that the section was not intended as a fall back provision in a conventional case for a plaintiff who is unable to establish factual causation. Rather, it was designed to accommodate cases quite out of the ordinary — particularly those involving exposures to a particular agent on multiple occasions, all of which contributed to a disease process but factual causation could not be attributed to a specific exposure. Alternatively, it was to be employed where scientific evidence may be developing in identifying the level of exposure to a particular agent necessary to produce injury.

Notwithstanding the Victorian legislature’s adoption of the word ‘appropriate’ as opposed to ‘exceptional’, those parts of the Ipp Report, the Second Reading Speech and the Explanatory Memorandum to which we have referred demonstrate that Parliament did not intend that the circumstances in which this provision could be engaged would extend to a simple case (such as this) where a plaintiff could not make out his or her case on factual causation.[58]
[58]See Adeels Palace (2009) 239 CLR 420, 443 [55]–[56].

The appellant’s submissions appear to treat expert evidence suggesting reasonable precautions which may reduce the risk of injury (as deposed to by Dr Hudson) as being sufficient to invoke the use of the section. However (and putting aside Dr Eisen’s disagreement with this proposition), that could not be enough to trigger operation of the section. This was simply a failure to prove what was in truth a very weak case; the appellant was unable to prove his case beyond demonstrating a somewhat increased risk of injury arising out of a contentious single event. It was not suggested that there was some body of developing scientific knowledge on this issue. Section 51(2) was not directed to the appellant’s situation.

It would be inappropriate in the context of this case for us to suggest the types of cases which may fall within the purview of s 51(2). It suffices to say that a case such as this — where there is one alleged tortious act and no question of multiple causes or unknown aetiology of the alleged damage — does not seem to us to be the sort of case that would be regarded as ‘appropriate’ for the normative attribution of responsibility to a defendant.[59]
[59]See [55] and the examples set out in the Explanatory Memorandum at [56] above.

Fourth, there would have been a sound basis for the trial judge to reject the application on the basis that it was unheralded and made too late in the case. Section 51(2) was neither pleaded nor mentioned in the course of opening addresses, nor in the course of the trial. The trial judge (and for that matter, counsel for the respondent) were, if not ambushed, at the very least surprised by the application at the conclusion of all the evidence. The trial judge would have been well within his rights, in our view, to refuse the application given its timing. Indeed, it was probably open to the respondent to lead evidence on relevant s 51(2) considerations (and particularly whether and why not responsibility for the harm should have been imposed upon it) in the course of the trial. Fortunately for the appellant, neither the trial judge nor respondent’s counsel took the point. Rather, admirably, they dealt with the issue on the spot and on the next day of the hearing. We are firmly of the view that if s 51(2) is to be relied upon as providing the appropriate causal link between a negligent act and attributing responsibility for the alleged consequential harm to a defendant, the basis of the claim should be set out in the pleadings, or at the very least, raised as an issue at the commencement of the trial.[60]
[60]We should add that conversely in a case where a defendant wishes to rely upon a scope of liability argument, this should be raised in the defence — notwithstanding that the onus is on the plaintiff to prove this element. We think it is the defendant’s responsibility, as rarely in common law cases in this state is scope of liability an issue.

We conclude on this issue by noting that there is no force whatsoever in the oral submission made by counsel for the appellant that the judge’s reasons for his decision were inadequate. It was beyond the pale to tackle a judge with this difficult proposition immediately prior to final addresses and without any warning. His Honour, as he explained on the morning after the submission had been made, researched the matter as best he could overnight and held that it was inappropriate to charge the jury as sought by the appellant’s counsel. It has to be borne in mind that an empanelled jury, which had spent ten days considering the evidence, was patiently (perhaps) waiting for the final addresses and the charge to commence. In the circumstances, we would commend, rather than criticise, the trial judge for the manner in which he handled the application.

The trial judge’s charge

Although not strictly relevant to the disposition of this appeal, to prevent confusion, we should mention the trial judge’s charge on causation.

At trial, the appellant was permitted by the trial judge to go to the jury on the basis that if it was satisfied that an unsterile needle cap materially increased the risk of injury then the factual causation test was made out. The jury, with the consent of the respondent’s counsel, was charged on this basis.[61]
[61]See [37] above.

It is clear that in Australia increased risk of injury alone resulting from a tortious act or omission is insufficient to make out a case on causation. In Amaca Pty Ltd v Booth, French CJ said:

Causation in tort is not established merely because the allegedly tortious act or omission increased a risk of injury. The risk of an occurrence and the cause of the occurrence are quite different things. That proposition is obvious enough and not determinative of these appeals.[62]

[62](2011) 246 CLR 36 (‘Booth’), 53 [41]. See also Roads & Traffic Authority v Royal (2008) 245 ALR 653, 689 [144]; Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145, 168–172 [96]–[105]; Evans v Queenbeyan City Council [2011] NSWCA 230 [20]–[22].

However, his Honour went on to say:

The mere existence of such an association or correlation does not justify a statement, relevant to factual causation in law, that the first event ‘creates’ or ‘gives rise’ to or ‘increases’ the probability that a second event will occur. Such a statement contains an assumption that if the second event occurs it will have some causal connection to the first. However, if the association between two events is shown to have a causal explanation, then the conclusion may be open, if the second event should occur, that the first event has been at least a contributing cause of that occurrence. An after-the-event inference of causal connection may be reached on the civil standard of proof, namely, balance of probabilities, notwithstanding that the statistical correlation between the first event and the second event indicated, prospectively, no more than a ‘mere possibility’ or ‘real chance’ that the second event would occur given the first event. There may of course be cases in which the strength of the association, as measured by relative risk ratios, itself supports an inference of causal connection.[63]

And concluded:

In summary, a finding that the defendant’s conduct has increased the risk of injury to the plaintiff must rest upon more than a mere statistical correlation between that kind of conduct and that kind of injury. It requires the existence of a causal connection between the conduct and the injury, albeit other causative factors may be in play.[64]

[63]Ibid [43]. See also Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262, [102]–[137].

[64]Ibid 57 [49].

Accordingly, we think it equally as clear that an increase in the relevant risk of injury, particularly if significant, is a relevant consideration for a tribunal of fact as one of the matters to be taken into account in determining if factual causation is made out. In Booth, Gummow, Hayne and Crennan JJ said:

The ‘but for’ criterion proved to be troublesome in various situations in which multiple acts or events led to the plaintiff’s injury, for example where the development of a particular medical condition was a result of multiple conjunctive causal factors. In such cases what may be unclear is the extent to which one of these conjunctive causal factors contributed to that state of affairs. These situations have been addressed by the propositions stated by Lord Watson in Wakelin v London and South Western Railway Co that it is sufficient that the plaintiff prove that the negligence of the defendant ‘caused or materially contributed to the injury’.[65]

[65]Ibid 62 [70] (citations omitted).

As we mentioned earlier, the appellant’s counsel’s approach was consistent with accepted practice: that a number of factors, taken together (including that of a decreased risk of injury by adoption of appropriate measures), were sufficient to discharge the onus in establishing factual causation.

Booth provides a ready example of this approach. The plaintiff contracted mesothelioma and alleged that it was due to his exposure to brake linings containing asbestos. The defendants, the manufacturers of the brake linings, contended that a body of epidemiological evidence disputed a link between mesothelioma and brake linings. The plaintiff relied upon a number of factors to make out his case:

(1)       he had contracted mesothelioma;
(2)       the only known cause of the disease is exposure to asbestos;
(3)       the expert evidence at trial, accepted by the trial judge, was that:
(a)       exposure to asbestos contributes to the disease; and
(b)the prospective risk of contracting the disease increases with a period of significant exposure;

(4) Mr Booth had two periods of significant exposure; and
(5)it was more probable than not that each period of exposure made a material contribution to bodily processes which progressed to the development of the disease. [66]

[66]Ibid 67 [83].

It follows that the direction of the trial judge on factual causation was a particularly beneficial interpretation of the test, in favour of the appellant. It might also be thought, given the terms of the direction, that the result would have been no different if the jury had been directed to consider s 51(2).

We also observe in passing that it is far from certain that the jury ever reached the question of factual causation. The appellant’s case on the absence of a needle cap relied on the evidence of his daughter and niece (one a child and the other a teenager at the time of the appellant’s treatment) being accepted over that of the trained nurse as to her standard practice. The jury may well have taken the view that the powers of recollection of the two young relatives as to the presence or otherwise of a cap on a needle in a kidney dish on an occasion six years prior to the trial strained credulity. The jury may simply have not been persuaded that there was any breach of duty on the respondent’s part.

Conclusion

The appeal must be dismissed.

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Citations

Powney v Kerang and District Health [2014] VSCA 221

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[2014] VSCA 221

11 September 2014