Prestage v Barrett

Case [2021] TASSC 27

[2021] TASSC 27

COURT:  SUPREME COURT OF TASMANIA

CITATION:                Prestage v Barrett [2021] TASSC 27

Thorne v Barrett

Howells v Barrett

FILE NOS:  3391/2018
  3392/2018

3393/2018

PARTIES:  PRESTAGE, Alan Michael

ARNOLD, Lee
AUSTRALIAN BUS & COACH COMPANY
BISCOE, Gillian Mary
BROWN, Warren
CALCRAFT, Mark
CALCRAFT, Lois Marilyn
CAMERON, Ian Geoffrey
CAMERON, Barbara Anne
CAMPBELL, Peter Norman
CAMPBELL, Denise
CLEAVER, Philip Andrew
CUNNINGHAM, Maxwell Peter
DALY, Gerard Patrick
DALY, Susan
DEAN, Ian
DEAN, Rosalie
DEAN, Rachel Anita
DEBBILL PTY LTD trading as DUNALLEY HOTEL
DIENAAR, Peter Joseph
DIENAAR, Rachel
DODDRIDGE, Dion
DODDRIDGE, Elizabeth
EDWARDS, David John
EDWARDS, Megan Sarie Anne
ENGLAND, Todd
FORSTER, Margaret Nancye
FROHMADER, Carolyn Patricia
SPAULDING, G & K trading as PENINSULA
READY MIXED
GUNNS PLANTATIONS LIMITED
HARLOW, Robert Stanton
HARRINGTON, Jane
HOGG, Harvey trading as SUNSET BEACH CABINS
HATCHARD, Leanne Marie
HATCHARD, Amanda
HENRY, Matthew
HOGG, Harvey
HOGG, Marie Anne Sylvaine
HOWELL, Peter
HOWELL, Sue
IRVINE, Andrew
ELDRIDGE, J L & ELDRIDGE, R C trading as
FOX & HOUND INN
JAHNKE, Lisa
JONES, Lois
KING, Sam
KRAMAR, Carolyne
L A ARNOLD PTY LTD
LANGLOIS, David Reginald
LANGLOIS, Anne Elizabeth
LAWRENCE, Margaret
LEACH, Robert Gordon
LEACH, Robyn Eleanor
LIEBACH, Ryszarda Romana
L M CALCRAFT CONSTRUCTION PTY LTD
MACDONALD, Jillian Faye
MARION BAY OYSTERS PTY LTD
McDONALD, Sally
MILLAR, Graham
MILLAR, Anne
NAILON, Mary
NAILON, John
CAMPBELL, P N & D trading as
CAMPBELLS CRANKSHAFT SERVICES
CAMPBELL, P N &D trading as
CAMPBELLS ENGINE MACHINING SERVICES
PARRY, Justin Nicholas
PEART, Greg
PHILLIPS, June
PICKETT, Megan
POWELL, Bryan
RISBY, Mark
SAM KINGPTY LTD
SAULIS, Vic
SAULIS, Kim
SCARR, Brendon
SHALANG PTY LTD
SPAULDING, Gerrard
SPAULDING, Kathy
SPAULDING, Peter
SUTCLIFFE, Robert Norman
SUTCLIFFE, Jillian Fay
TAYLOR, William
THORPE, Robert Stanley
THORPE, Dianna Christina
W DOWNIE FAMILY TRUST
WADE, Wendy
WALKER, David
WHELAN, Vanessa
WILSON, Barry

v
          BARRETT, Melisa Jane
          ROBINSON, Hamish

THORNE, Michael
ACKERLEY, Jillian
ACKERS, Scott George
ANDERSON, Peter
ANDERSON, Lesley
APTED, Michael
AVERY, Simon
BARKER, Kim
BATE, Ben
BELBIN, Donald Neal
BIRD, Kathryn
BIRD, Robin
BLANKSBY, Graham
BOLT, Eilderdina Aaltj
BONNER, Lesley
BOSWORTH, Gavin
BOWDEN, Michael
BOWDEN, Paula
BOYD, James
BRADBURY, Andrew
BRANCH, Alexander John
BRANCH, Jodie Ann
BRANCH, Alexander
BRANCH, Jodie
BRENNAN, Sharon Elizabeth
BRICKNELL, Stacey Louise
BROWN, Anthony
BROWN, Douglas
BROWN, Dawn
BURGESS, Gregory
CAMPBELL, Donald
CAMPBELL, Agnes
CAMPBELL, Ralph
CAMPBELL, Tracie Leanne
CAMPBELL, Matthew Alan
CAMPBELL, Stephen Craig
CAMPBELL, Peter
CAMPBELL, D
CARTER, Anthony
CARTER, Lesley
CASTLE, Noel
CHIVERS, Jill
CLARK, Sonya
CLARK, Karen
CLEAVER, Lance
CLEAVER, Jullian
CLEMENTS, Lauren Margaret
CODY, Peter
CODY, Gale
COLVILE, Julian David Asgill,

COOK, William,
COOPER, Steven.

COOPER, Julia
COWEN, Brian
COWEN, Josi
COWEN ENTERPRISES
COWLEY, M C
CUATT, Lisa
CUNNINGHAM, Maxwell Peter
CUNNINGHAM, Peter
CUNNINGHAM, Julie
CUTHBERTSON, Guy
CUTHBERTSON, Judith Ann
CUTHBERTSON, Judy
DARE, Joseph Bernard
DAX, Richard Charles Cunningham·
DAX, Anne
DEAN, Brendan Rodney
DEAN, Clare Maree
DELLAS, Emmanuel
DELLAS, Christina
DOBSON, Steve
DOBSON, Robert
DODGE, Phil
DODGE, Phil
DOWNIE, William
DOWNIE, Robert
DUNBABIN, James
DUNBABIN, Margaret
DUNBABIN, Mark

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AGLC
Prestage v Barrett [2021] TASSC 27
Case
[2021] TASSC 27
Decision Date

CaseChat Overview and Summary

In the case of Prestage v Barrett, the plaintiffs sought to recover damages for bushfire losses they alleged were caused by the defendants' negligence in failing to extinguish a campfire. The Supreme Court of Victoria was tasked with determining the legal issues surrounding causation and the sufficiency of circumstantial evidence to establish negligence. The primary legal issue was whether the plaintiffs could establish causation in negligence based on circumstantial evidence, where multiple breaches of duty by the defendants could have caused the damage. The court had to decide if the plaintiffs needed to identify the specific breach of duty that caused the damage, or if it was sufficient to establish that the damage resulted from one or more breaches.

The court considered the nature of circumstantial evidence and whether it was sufficient to establish causation in negligence. The court noted that in cases based on circumstantial evidence, the weight of all the circumstances together must be considered. The court referred to the principle that a rational choice between competing hypotheses, informed by a sense of actual persuasion, can support a finding of causation on the balance of probabilities. The court highlighted that in cases involving multiple breaches of duty and insufficient evidence to identify a specific causative breach, it would be unjust to deny the plaintiffs recovery of damages.

The court concluded that it was not necessary for the plaintiffs to identify the specific breach of duty that caused the damage, as long as it was established on the balance of probabilities that the damage resulted from one or more breaches. The court rejected the notion that a plaintiff must establish causation by a particular breach of duty, emphasising that if a plaintiff establishes that a defendant breached duties of care and that the plaintiff suffered damage as a result, the plaintiff is entitled to recover damages. The court found that the trial judge erred in considering the evidence of each breach of duty in isolation, rather than assessing the combined strength of the possibilities that the damage was caused by one or more breaches.

The court allowed the appeal and remitted the matter to the trial judge to reassess the evidence in light of the correct legal principles. The final orders of the court were not detailed in the extract, but it was clear that the case was to be reconsidered with the proper approach to circumstantial evidence in negligence cases.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In Brocklands, Blow CJ said at [37]-[47]:"Circumstantial evidence (Ground 2)37 … his Honour said that he was satisfied, on the basis of the respondent's expert evidence, supported by the modelling evidence from one of its expert witnesses, Dr Muthumuni, that the appellant had not established a surge event of the magnitude alleged, nor that the respondent's acts or omissions were a necessary element of the harm to the PLC. He went on to set out his reasons for that conclusion at [212]-[258], referring in detail to the evidence of the parties' expert witnesses. At [259] he repeated his conclusion that the appellant had 'not established on the balance of probabilities that there was a high voltage surge event in December 2010 which damaged the PLC'. 38 The proper approach to a case based on circumstantial evidence is as stated by Lord Cairns in Re Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279:'… in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.'39 The case law as to wholly circumstantial civil cases was usefully summarised by Porter J in Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6, 24 Tas R 18 at [119]-[126]. The following propositions were made clear by his Honour's analysis:• 'Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found'. 'A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.' Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 per McDougall J (with whom McColl and Bell JJA agreed) at [55].• 'All that is necessary is that according to the course of common experience the more probable inference from the circumstances … should be that the injury arose from the defendant's negligence. By more probable is meant no more than upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.' Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 6.• 'Evidence of possibility is capable of supporting a probative inference, and expert evidence of possibility may, as circumstantial evidence, alone or in combination with other evidence, establish causation': Langmaid, per Porter J at [124], citing Seltsam Pty Ltd v McGuiness [2000] NSWCA 29, 49 NSWLR 262 per Spigelman CJ at [89]; McDonald v Girkaid Pty Ltd [2004] NSWCA 297, Aust Torts Reports 81-768, per McColl JA (with whom Beazley JA and Young CJ in Eq agreed) at [104]. 40 In Langmaid, the appellant's case was that 'hot work' undertaken by the respondent had caused a fire. There were two other possibilities that had to be considered, namely a possibility that the fire was not caused by hot work at all, and a possibility that it was caused by hot work undertaken by an employee of one of the appellants. At [126], Porter J indicated that it was necessary to acknowledge 'the combined strength of the possibilities that the fire was not caused by hot work at all, and that it was caused by the hot work of the first appellant's employee'. Similarly, in this case, it is necessary to evaluate the 'combined strength' of the possibilities asserted by the appellant. 41 That is not what the learned trial judge did. At the beginning of the passage in his reasons relating to causation, he said, at [157], 'Each of the factual matters upon which the plaintiff relies to prove causation must be proved by it on the balance of probabilities'. His Honour seems to have regarded it as axiomatic that proof of causation in this case required the identification of at least breach of duty that was established on the balance of probabilities to have caused or materially contributed to the appellant's damage. Similarly, counsel for the respondent, in their submissions to this Court, appear to have regarded that as axiomatic. The respondent's submissions as to causation appear to assume that a claim for damages for negligence cannot succeed without the claimant establishing on the balance of probabilities that there has been both a breach of a duty of care and a suffering of harm resulting from that particular breach. However the appellant's contentions are based on the premise that, where there are pieces of circumstantial evidence akin to strands in a cable, it is sufficient to establish on the balance of probabilities that there were breaches of duty, that harm was suffered, and that the harm must have resulted from one or more breaches of duty, even if no individual breach of duty can be identified as causative.42 This is no ordinary case. I have been unable to find any civil case in which findings have been made as to multiple breaches of duty, damage resulting from one or more of those breaches of duty, and insufficient evidence for the causative breaches to be established. There are certainly cases that stand for the proposition that a plaintiff does not need to establish precisely how an injury was suffered: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 23-24; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, 243 CLR 361 at [53]-[54]; Duma v Mader International Pty Ltd [2013] VSCA 23, 42 VR 351 at [3]; Langmaid v Dobsons Vegetable Machinery Pty Ltd (above) at [141]. However those cases did not involve distinct breaches of duty, competing possible causes of harm, and a shortage of evidence pointing to one or more particular causes. 43 A criminal case involving multiple possible causes of harm has been considered by the English Court of Appeal: Attorney-General's Reference (No 4 of 1980) [1981] 1 WLR 705. That reference related to the trial of a man who was acquitted on a charge of manslaughter. The Crown alleged that he had killed a woman, but the woman's body was never found. On the evidence there were three possible causes of death. She might have died as a result of the accused pushing her and causing her to fall and hit her head, or as a result of the accused strangling her with a rope, or as a result of him cutting her throat. The trial judge held that the Crown bore the burden of proving beyond reasonable doubt which act caused the woman's death, and that the evidence was insufficient for the jury to be satisfied beyond reasonable doubt that any particular act was the cause of death. He therefore directed an acquittal. Ackner LJ, reading the opinion of the Court of Appeal, said, at 710:'... this reference raises a single and simple question, viz: if an accused kills another by one or other of two or more different acts each of which, if it caused the death, is a sufficient act to establish manslaughter, is it necessary in order to found a conviction to prove which act caused the death? The answer to that question is "No, it is not necessary to found a conviction to prove which act caused the death". No authority is required to justify this answer, which is clear beyond argument ...'.44 For a jury to convict on circumstantial evidence alone in a criminal case 'the circumstances must exclude any reasonable hypothesis consistent with innocence': Chamberlain v The Queen (No 2) (1984) 153 CLR 521 per Gibbs CJ and Mason J at 536. There is nothing in that principle that requires a jury to conclude that an accused person committed the crime charged in a particular manner when the evidence leaves open the possibility that the accused committed the crime in two or more ways, each of which are consistent with guilt.45 In civil cases, when harm is shown to have resulted from one or more breaches of duty by a tortfeasor, and there is uncertainty as to which breach of duty caused the harm, it would be extremely unjust if plaintiffs were required to establish on the balance of probabilities which particular tortious act or acts resulted in the harm. It would be most unjust if a tortfeasor could escape liability as the result of a plaintiff being unable to discharge such a burden. A plaintiff might establish on the balance of probabilities that he had suffered damage as the result of a defendant's negligence, but recover no damages because there were two or more breaches of duty that could have caused the harm, and no individual breach of duty could be identified as causative. Furthermore, tortfeasors committing multiple distinct and varied breaches of duty would enjoy an advantage not shared by tortfeasors responsible only for single breaches of duty. 46 A number of the leading cases about causation in the law of negligence contain statements of principle which, at face value, might be taken to suggest that a plaintiff bears the burden of establishing causation by a particular breach of duty. For example, in Chappel v Hart (1998) 195 CLR 232 at [23], McHugh J said that 'causation theory insists that the plaintiff prove that the injury is relevantly connected to the breach of duty'. However such pronouncements should not be taken out of context and treated as authority in relation to a point of law that they were not intended to relate to. 47 As a matter of principle, if a plaintiff establishes on the balance of probabilities that a defendant owed him duties of care, and breached them, and that he suffered damage as a result of the plaintiff breaching such duties, then that plaintiff must be entitled to recover damages, even if it is not possible to establish on the balance of probabilities which breaches were causative. It follows that the learned trial judge was required to treat this case as a 'strands in a cable' case, and to assess the combined strength of the possibilities that the appellant's damage had been caused by the various asserted breaches of duty on the part of the HEC and Aurora. By considering the evidence as to each asserted breach of duty in isolation from the evidence as to the other asserted breaches, his Honour erred in the manner asserted by ground 2 of the notice of appeal." [Emphasis added.]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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