Turner v Norwalk Precast Burial Systems Pty Ltd (Ruling)
[2023] VCC 1843
•18 October 2023
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-18-04517
| GARTH TURNER | Plaintiff |
| v | |
| NORWALK PRECAST BURIAL SYSTEMS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 18, 19, 20 and 21 September 2023 | |
DATE OF JUDGMENT: | 18 October 2023 | |
CASE MAY BE CITED AS: | Turner v Norwalk Precast Burial Systems Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1843 | |
RULING
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Subject:ACCIDENT COMPENSATION
Catchwords: Negligence – no-case submission – whether causation is satisfied - test of causation in tort and contract – lack of expert evidence
Cases Cited:Sarkis v Deputy Commissioner of Taxation [2005] VSCA 67; Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187; Swain v Waverley Municipal Council (2005) 220 CLR 517; Wodonga Regional Health Service v Hopgood (2012) 37 VR 284; East Metropolitan Health Service v Ellis (by his next friend Ellis) [2020] WASCA 147; Amaca Pty Ltd v Booth (2011) 246 CLR 36; Cotton on Group Services Pty Ltd v Monica Golowka [2022] VSCA 279, The Commonwealth of Australia v Amann Aviation (1991) 174 CLR 64
Ruling:Application upheld
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Turner in person | |
| For the Defendant | Mr E Makowski | BN Law |
HIS HONOUR:
1This is a ruling in respect of a no-case submission made by the defendant at the close of the plaintiff’s case on day four of the trial. For the reasons which follow, I will uphold the defendant’s no-case submission and I will dismiss the plaintiff’s claim.
Brief relevant background
2The plaintiff was born in August 1948. After leaving school, he obtained work as an apprentice carpenter and qualified thereafter. Since that time, he has worked as an employee, contractor or subcontracting carpenter involved in residential construction. In addition to this, he has worked, at times, performing his own property developments. This involved the purchase of land, the construction of homes and then their sale for profit.
3For the purposes of considering the defendant’s no-case submission, it can be accepted that, prior to 2012, the plaintiff was in good physical health, that at that time he was working in a full-time capacity as a subcontracting carpenter and had, underway, a number of property developments.
4Relevantly to this matter, in about October 2003, the plaintiff purchased a block of land at 161 Johnson Lane, Seaton (“the premises”). He built a barn on it where he stored tools. However, at this stage he did not live there. His evidence was that, in about August 2008, the stumps for the property went in, but he otherwise lived in the barn occasionally when he came down from Melbourne on weekends.
5On 14 March 2008,[1] the plaintiff made application to the council for the installation of a Taylex Pty Ltd[2] compact septic tank system on the premises (“the Taylex unit”). He gave evidence that in about the middle of 2008, he engaged Leigh Gordon Bros Pty Ltd (“Gordon Bros”) for purchase and installation of a septic-waste treatment plant. Once again, it can be accepted that Gordon Bros were the authorised representatives of Taylex. They were a company that specialised in septic-waste systems and were a recommended provider of septic waste systems to residents of the Wellington Shire, where the premises were located. That application was granted on 7 August 2008.[3] With the approval, council set out the site for the installation of the septic tanks and an area known as the effluent dispersal area.[4] To explain this very briefly and broadly at this stage: waste water flushed from the house, being from the toilet, shower, washing machine and sinks, would flow out of the house via a drainage pipe to the Taylex unit located at the rear of the property. After going through a process in the Taylex unit, it would then be pumped through pipes which ran to an area adjacent to the house and which were covered by grass. A photograph depicting the zone where the effluent pipes were located can be seen at Joint Court Book (“JCB”) 55.
[1]Joint Court Book (“JCB”) 96
Taylex Pty Ltd was subsequently bought out by Norwalk Precast Burial Systems Pty Ltd (“Norwalk”) the named Defendant in this proceeding
[3]JCB 97
[4]JCB 98
6On 15 October 2008, Mr Leigh Gordon of Gordon Bros signed a licensed plumbers’ certificate of compliance in regard to the installation of the Taylex unit.
7On 29 October 2008,[5] council issued an approval to use the septic tank system which had been installed by Gordon Bros.
[5]JCB 102
8In 2008, it will be remembered that the plaintiff was not living in the premises, but only visiting on occasion. He gave evidence that he did not use the Taylex unit, as the house was not fully constructed during 2008 or 2009 but, rather, continued to use amenities located in the barn and, in particular, used a portable toilet which he would flush at the local town RV park toilets.
9This continued to be the situation during 2009 and 2010, and into 2011. During this time, the plaintiff gave evidence that he contacted Mr Gordon of Gordon Bros on numerous occasions, trying to get him to attend to perform maintenance on the Taylex unit. The plaintiff’s evidence was that Mr Gordon failed to return any of his calls and he could not get him to come to inspect the Taylex unit. The plaintiff gave evidence that, in frustration, he then went to Mr Gordon’s home in 2011. Mr Gordon advised him that he had ceased business. At that point, the plaintiff contacted Taylex directly and shortly thereafter Mr Andrew Taylor of Taylex attended. There is considerable debate about what occurred when Mr Taylor attended onsite on 18 October 2011. That dispute can be passed over, given this is a no-case submission, and in this circumstance, the defendant accepts that the plaintiff’s version of events can broadly be accepted.
10The plaintiff’s version of events is that after Mr Taylor had inspected the Taylex unit, he discovered it was missing what was known as an “aerator arm”. Mr Taylor told the plaintiff that he would arrange for the aerator arm to be shipped to a tradesperson who would then come and install it. On the plaintiff’s version of events, he believed that this would be done shortly after Mr Taylor’s visit. A field service report was generated by Mr Taylor, a copy handed to the plaintiff, and a further copy filed with the Wellington Shire Council.
11On the plaintiff’s version of events, he assumed that the aerator arm would be fitted by the approved tradesman shortly thereafter. The plaintiff’s evidence was that he would not expect the tradesperson to contact him to let him know he had done the work required. The plaintiff’s evidence is also that he expected, thereafter, regular inspection of the unit would be done by the Taylex representative. Given those matters, the plaintiff assumed that the Taylex unit was working properly and he paid no further mind to it.
12In about 2012, the plaintiff began to feel sick with symptoms of reflux. Things worsened during 2013, as the plaintiff obtained a certificate of occupancy and began living at the premises on a full-time basis. The conditions worsened to such an extent that he required hospitalisation on a number of occasions during 2013 and 2014. At that stage, he returned a positive test for Helicobacter pylori (“HP”).[6] HP is a bacteria which is spread by the faecal/oral route.[7] HP resides in the stomach and is a cause of peptic-ulcer disease.[8] There has never been a diagnosis of peptic-ulcer disease in the plaintiff’s case.
[6]JCB 136
[7]Associate Professor Desmond at JCB 566
[8]Dr Jakobovits at JCB 598
13The plaintiff ceased work in about 2013 and has not worked since that time. His situation continued, with him requiring medical treatment in the form of antibiotic treatments for persistent HP infections throughout 2014, 2015 and 2016. During this time, the plaintiff gave evidence that he was attempting to obtain assistance with the maintenance and inspection of the Taylex unit. Then, in late 2016, he noticed a fault with the lighting mechanism of the Taylex unit. He contacted an electrician by the name of Mr Dean Stoddart, who, in turn, told him to call Mr Robert Shaw of H20 Solutions, who specialised in maintenance of septic tanks.
14The plaintiff gave evidence that he contacted Mr Shaw in late 2016 and advised him of the problem. Once again, there is debate between the parties as to what then occurred. However, given this is a no-case submission, the evidence of the plaintiff can be accepted on this point. The plaintiff’s evidence was that, upon contacting Mr Shaw and explaining the problem to him, Mr Shaw broadly said that he was aware of the problem, as he had been sent the aerator arm some time ago by Taylex, but had failed in getting around to installing it.[9] The plaintiff, in response, attended at Mr Shaw’s house, picked up the wrapped aerator arm and took it back to the premises. The plaintiff then obtained instructions from Mr Shaw over the phone as to the installation of the aerator arm and installed it himself. Thereafter, Mr Shaw attended at the plaintiff’s premises regularly to maintain the system. On the plaintiff’s case, during 2017 he had a lessening of his symptoms, but continued to require courses of antibiotics to finally clear the HP from his system. He returned a negative finding for HP in April 2019. The HP infection was finally cleared in April 2019 after some seven bouts of antibiotics. The plaintiff has ongoing gastro-oesophageal reflux disease symptoms unrelated to HP. Shortly after, he sold the property and has not lived there since. Since clearing the HP, he has not been troubled by a recurrent HP infection. However, he continues to complain of other symptoms. These do not need to be delved into given the defendant’s no-case submission is in respect of liability.
[9]Mr Shaw was not called to give evidence by the Plaintiff
The Plaintiff’s case
15The plaintiff’s case is that the Taylex unit was improperly installed and maintained by Leigh Gordon and Andrew Taylor, and such a failure was the cause of his recurrent HP infections, sickness, loss and damage. The defendant attacks the plaintiff’s case on a number of different fronts:
(a) that Leigh Gordon was not their agent;
(b) that the installation was incorrect;
(c) that the maintenance was their responsibility from 2008 and 2011, when Leigh Gordon refused to come to the property;
(d) that Andrew Taylor properly commissioned the Taylex unit in October 2011;
(e) that the unit was missing the aerator shaft at all;
(f) that Taylex had responsibility to service the unit from October 2011, when that responsibility fell to the plaintiff.
A “no – case” submission
16The defendant’s real attack, though, is made through the prism of the no-case submission as to liability, particularly causation.[10] That test is best set out in the judgment of Sarkis v Deputy Commissioner of Taxation,[11] wherein their Honours said:
“… But their Honours were there speaking in the context of trial by jury – both judges emphasised that they were not dealing with the case of trial by judge alone - and the position is different where the trial is before judge alone. As Windeyer, J. observed in Jones v Dunkel, where the trial is of the latter kind the proposition ‘no case to answer’ may obviously mean far more than: ‘is there evidence on which a jury could find for the plaintiff?’. It may mean: ‘would you the judge on the evidence given, find for the plaintiff?’ In such a case, the judge must decide whether he or she could find for the defendant on the evidence so far led. … .”
(Emphasis added. Footnotes omitted.)
[10]The defendant had raised the issue of causation during the course of litigation in 2022. Subsequent to a Judicial Mediation conducted by Judicial Registrar Gurry the Head of the Self Represented Litigants List her Honour Judge Tran made very specific notation in Orders made on 15 November 2022 as to what the plaintiff had to prove at trial and further how relevant evidence could be called. This touched on the issue of causation. In addition the plaintiff was ordered to provide a statement setting out the evidence in support of breach of duty and causation. The Plaintiff did not provide such a statement. A great deal of assistance was therefore provided to the plaintiff in the giving of his evidence so that his case could be presented. At times I permitted Ms Berry, a friend of Mr Turner’s, to assist him by addressing the Court.
[11][2005] VSCA 67 at paragraph [14]
17Their Honours went on to affirm what was said by his Honour Tadgell J in Protean (Holdings) Ltd v American Home Assurance Co.[12]
[12][1985] VR 187 at 240-239
18That focused attention on two matters which, it was said, the plaintiff could not prove to satisfy his case in either contract or tort. Examining the case in tort first. The two matters on the no-case submission arise in relation to causation. On the defendant’s no-case submission, the plaintiff’s case on duty and breach can be accepted. That is, it can be accepted the defendant owed a duty to take reasonable care to ensure the Taylex unit was installed and maintained from 2008, such that it would not pose a danger to persons living at the premises. This is a wholesale acceptance of paragraphs [1] to [8] of the Amended Statement of Claim.
19It is the next paragraph of the plaintiff’s pleading, at paragraph [9], as to causation that the defendant submits cannot be proved by the evidence on the balance of probabilities. That paragraph reads as follows:
“9.At all relevant times from on or about 29 October 2008 the plaintiff was exposed to various pathogens emanating from the system including helicobacter pylori (‘the exposure’).”
20The inability of the plaintiff to prove this pleading of causation was said to be shown by the failure to have any evidence as to the following matters:
(a) assuming the unit was missing the aerator arm until January 2017, did it emit any HP through the effluent pipes which are located in the lawn areas shown at JCB 122;
(b) if the unit did emit HP, there is insufficient evidence that could lead to a finding that it was a cause of the plaintiff’s HP infection.
Causation
21Dealing with the first question. At a high level of expression regarding the plaintiff’s obligation to prove causation in a case of negligence, in Swain v Waverley Municipal Council,[13] his Honour McHugh J said:
“The plaintiff bears the legal and evidentiary burden of establishing a prima facie case of negligence … The plaintiff does not prove a case of negligence, for example, by proving the existence of the risk and then alleging that the defendant took no precautions to protect the plaintiff against that risk.”
(Footnote omitted.)
[13](2005) 220 CLR 517 at paragraph [40]
22Specifically as to the issue of causation, Maxwell P explained in Wodonga Regional Health Service v Hopgood:[14]
“… the causal link between the breach of duty and the claimed damage can only be established by means of a counterfactual hypothesis. That is, the plaintiff must propound an alternative state of facts, premised upon the defendant’s having exercised reasonable care and, specifically, upon there having been no such omission. … .”
(Footnote omitted.)
[14](2012) 37 VR 284
23Applying this principle, it can be seen that the plaintiff must demonstrate evidence which could lead to a finding in his favour on two points:
(a) What the defendant should have done had reasonable care been exercised.
On this point, the plaintiff can call evidence of fitting the shaft in 2017 to demonstrate it had not been previously fitted. I accept this evidence could support a finding on breach;
(b) He must then go on to demonstrate how the fitting of the aerator shaft or servicing of the Taylex unit would have averted the injury, loss or damage.
On this point, the plaintiff calls in aid a temporal connection of his beginning to reside at the property and the onset of HP infections.
Would the fitting of an aerator arm have affected the emission of HP?
24There is, however, no evidence as to whether the Taylex unit emits HP with or without the aerator arm. That is, the plaintiff has no evidence to support his counterfactual hypothesis that the fitting of the aerator arm would eliminate or reduce the presence of HP in the effluent pipes. Similarly there is no evidence as to the how servicing of the unit would have remedied the situation. In fact, there is no evidence which explains the operation of the plant at all. This is critical. In East Metropolitan Health Service v Ellis (by his next friend Ellis),[15] the West Australian Court of Appeal stated the basic principle in this way:
“In this regard, it is clear, and there can be no doubt, that mere proof by a plaintiff of the possibility that a defendant's breach caused the plaintiff to suffer harm is insufficient. The court must be satisfied that it is more probable than not that the defendant's breach caused the relevant harm; it is not sufficient to conclude that the breach may have been a cause of the harm.”
(Footnote omitted.)
[15][2020] WASCA 147
25While it is possible to draw inferences from established facts, this must still be sufficient for the plaintiff to meet his burden of proving his case on the balance of probabilities. While in some cases a plaintiff can meet their burden by drawing on inferences and relying on “commonsense” to allow the Court to find causation, that is not always permitted. Here, commonsense sheds no light on the working of the Taylex Clearwater 90 septic tank system.
26To remedy this lack of evidence about the operation of the Taylex unit, the plaintiff sought to tender a booklet which purportedly set out the working of a Taylex septic system.[16] The admissibility of this document was in dispute and it was marked for identification only and not tendered. For the purposes of the no case submission, I have considered this document as if it were admissible as the plaintiff contended.[17]
[16]MFI D27
[17]I make it plain that otherwise I consider this document is inadmissible. This is because the evidence is that it was sourced from the internet by the Plaintiff in 2021. It has not been verified as applicable to the Taylex unit installed in 2008 at the premises. I exclude it on the basis that it is a hearsay document, it is not a business record, and further pursuant to s135 of the Evidence Act in that its probative value is outweighed by its being unfairly prejudicial and misleading and confusing.
27There is no instruction manual or booklet describing the operation of the Taylex unit, which was installed in 2008 by Leigh Gordon, tendered in evidence.
28There are many questions as to the operation of the Taylex unit which bear directly on the inferences the plaintiff urges the Court to make.[18] Without answers to these questions, it is impossible to make the requisite findings which could lead to a finding, on the balance of probabilities, that HP emitted from the Taylex unit was a cause of the plaintiff’s recurrent HP infections. Some of these questions are:
(a) does the system emit HP at all, even when fully functioning;
(b) what is the function of the aerator arm;
(c) does the operation of the aerator arm kill the HP;
(d) do any other processes, such as the passage of the effluent over the chlorine tablets contained in the system, kill some or all of the HP;
(e) does the process of settling in the Taylex unit kill some or all of the HP;
(f) what effect, if any, does the failure to have the system serviced every three months, or once a year, have on the emission of HP into the effluent pipes;
(g) if the effluent pipes are buried under the soil, does discharge into soil underground destroy or alter the HP emitted in any way;
(h) can HP bind to grass as it grows and then transmit to other surfaces, such as hands?
[18]The following are not an exhaustive list of questions but simply provided to demonstrate the issues which arise by reason of the lack of technical, expert or lay evidence as to the operation of the Taylex unit.
29The importance of these questions to the inferences sought to be drawn by the plaintiff, given the temporal nexus between his residence at the property and the onset of his symptoms, can be shown by one example. If the passage of the effluent over the chlorine tablets[19] kills HP, then, consequently, there can be no HP on the lawn for the plaintiff to ingest. This is significant, as the document the plaintiff sought to exhibit outlining the operation of a Taylex septic system states specifically that one of the mechanisms a Taylex system uses to destroy bacteria is the use of chlorine tablets. The booklet states: “Chlorination to destroy pathogens (bacteria-viruses)”.[20] At first blush, this suggests that it is the chlorination that kills the HP rather than anything to do with the operation of the aerator arm. In this case, whether or not the aerator arm was fitted would have no effect on the emission of HP. In those circumstances, the plaintiff’s case would fail. Of course, there are many counterarguments to this. The plaintiff may, for example, revert to his argument of there being a temporal causal nexus between the onset of his symptoms and his residence at the premises. However, this is just one of a number of possibilities.
[19]As set out in step three at JCB 60
[20]MFI D27 JCB 59 - 62
30Without being able to explain the basic workings of the plant in relation to its treatment of HP, the plaintiff is unable to raise his allegations of infection from the plant above being a mere possibility. His claim must fail on this basis. I uphold the defendant’s no-case submission on this point alone. It applies equally in respect of the contractual case for reasons I set out below.
Can the Plaintiff show he swallowed HP coming from the Taylex unit?
31The defendant raised a further ground to support its no-case submission: namely, that the plaintiff cannot prove, on the balance of probabilities, that the source of his HP infections was ingestion of HP found on his lawn. To this point, the plaintiff raised three arguments, which he submitted led to a finding that he could succeed. First was the temporal nexus as to the onset of symptoms with his residence at the premises. The second was the obverse: the cessation of HP infections once the aerator arm was installed in January 2017. The third was medical evidence he called in aid from Associate Professor Desmond, Dr Bruce Johnston, Dr Andrew Jakobovits and Dr John Colman.
32Turning to examine the plaintiff’s first argument as to the onset of symptoms being temporally linked to the plant being commissioned and him beginning to reside at the premises in 2012. This argument is made on the basis that the plant emitted HP. However, there is no evidence as to how the effluent went into the lawn or how it went from there via the oral route into the plaintiff’s system. For example, JCB 55 shows the areas where the effluent lines were installed. However, there is no indication whether the lines are above or below ground. It appears from the photographic evidence that they are below ground. There is no evidence one way or the other how HP emitted by underground effluent lines could find its way into the plaintiff orally. For example, it might be expected an occupational hygienist would provide opinion as to the flow rate of effluent containing HP and what would happen to it on contact with soil or air. Would it infect growing grass and, if so, could transmission occur when the plaintiff cut and handled the grass? Could transmission occur via the HP being airborne after leaving the effluent pipe? Is dosage of HP consumed by the plaintiff important, that is, does a certain amount of HP need to be ingested for the infection to become fulminant? If so, did the effluent pipe emit such a dose? Simply asserting a temporal nexus is insufficient to prove causation where the issue of transmission and infection are complex and require more than commonsense.
33Turning, then, to examine the medical material. Associate Professor Desmond stated:
“… Helicobacter pylori is a bacteria that is spread by the faecal-oral route so it is very conceivable that his initial infection is related to the malfunctioning pump on his septic system, as he would be exposed to faeculent (sic) material from working around the pump on the land where it was released.”[21]
[21]JCB 566
34The first point to note is that Associate Professor Desmond has a history of a return of symptoms after the plaintiff “spent some time trying to fix his septic system which had blocked up”.[22] This is obviously an entirely different mechanism for ingestion of the HP than via the effluent lines contaminating the grass and is not a pleaded or particularised allegation against the defendant. Secondly, however, and most importantly, Associate Professor Desmond has assumed that feculent material omitted from the effluent lines contained HP. There is simply no evidence of that; it is just one possibility among – to use his language – a “conceivable” number of possibilities.
[22]JCB 565
35To the extent the plaintiff calls in aid the report of his surgeon, Dr Johnston,[23] I note that he has an entirely incorrect history of how the plaintiff came into contact with potentially HP-contaminated material. The history that he took is:
“[The plaintiff] was working at that time as an engineer in a sewerage treatment plant requiring him to work in close proximity to untreated human waste while working on machinery involved in the treatment process.”[24]
[23]JCB 583
[24]JCB 583
36An incorrect history of such proportions necessarily invalidates any opinion as to the likely cause of the plaintiff’s HP infections from the effluent pipes of the Taylex unit.
37Next is Dr Jakobovits. He proceeds on the assumed basis that:
“… [the plaintiff was] diagnosed in early 2015 with a Helicobacter pylori infection and it is likely that this was acquired when [he was] in contact with sewage which was not appropriately treated in the plant installed by Taylex”.[25]
[25]JCB 598
38There is no evidence of sewage that was not appropriately treated being emitted. As set out above, the plaintiff cannot prove that the failure to fit the aerator arm led to the emission of HP into the effluent line. Or, in the alternative, that the chlorination component of the plant did not work efficiently if the aerator arm was not present. The same criticism can be made of Dr Colman’s finding.[26] Overall these medical opinions do not assist the plaintiff’s case on causation.
[26]JCB 602
39The last point relates to the clearance of the HP after January 2017, when the plant had the aerator arm installed and began to be serviced. It is true the HP was cleared by April 2019, the plaintiff sold the property around that time and he has had no further HP infections since this time. He submits that this proves the HP infections were caused by the improperly installed system. In Amaca Pty Ltd v Booth,[27] Gummow, Hayne and Crennan JJ held that:
“Even if the issue is one to which other disciplines may not be able to give any conclusive answer, questions of causation, as a step in the ascertainment of rights and the attribution of liability in law, call for sufficient reduction to certainty to satisfy the relevant burden of proof for the attribution of liability.
The "but for" criterion of causation 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 the 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 proposition 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"”.[28]
[27](2011) 246 CLR 36
[28]Ibid [69] (citations omitted)
40In Cotton on Group Services Pty Ltd v Monica Golowka,[29] the Victorian Court of Appeal held that common sense can be used in drawing an inference as to causation and it is not necessary to lead expert or technical evidence.[30] Nonetheless, the process of reasoning must not be based on speculation or guesswork.[31] I consider this to be a case that cannot be resolved without further relevant expert evidence. While it can be accepted there is a temporal link, by itself this is not enough to satisfy the Court on the balance of probabilities that the failure to install the aerator arm was a cause of the HP infection.
[29][2022] VSCA 279
[30]Ibid [121]-[124]
[31]Ibid [124], [170]
41As a result, I find that the inferences sought to be drawn by the plaintiff simply cannot be made out. They do not provide a basis on which he could prove, on the balance of probabilities, that the lack of an aerator arm has led to HP-contaminated effluent being present in the effluent pipes and that he has ingested HP from that source. For this reason, also, the defendant’s no-case submission must succeed.
The alternative case in contract
42I stay briefly to deal with the plaintiff’s alternative case in contract. It is unclear on the pleading what is particularised as being the terms of the contract or those matters said to comprise the breach of the terms of the agreement.[32] I will proceed however in this case on the basis that the plaintiff’s pleading at [1]-[8] can be accepted. That is, that Leigh Gordon operated at all times as the agent for Taylex and, by reason of Mr Gordon’s actions, a contract was formed between Andrew Turner and Taylex for the proper installation and safe operation of the Taylex unit. It can also be assumed that Mr Turner’s involvement occurred within the terms of that contract to ensure the proper and safe operation of the Taylex unit. I have assumed then that the particulars of breach of the agreement are those at [8](i)-(iv)[33] of the Amended Statement of Claim.
[32]The term “agreement” is defined at [4] of the Amended Statement of Clam. There are no terms of the agreement thereafter particularised.
[33]The Amended Statement of Claim particularises [8](i)-(iv) and then reverts to the last particular as (iii). I assume this is a typographical error that should read “(v)”.
43The same issues as to causation then arise on the pleaded contract case as they do in the case pleaded in negligence.
44Describing the test in causation in contract and intort, his Honour McHugh J stated:
“Deane J. said (at p524) that ‘the question whether conduct is a “cause” of injury remains to be determined by a value judgment involving ordinary notions of language and common sense’. The majority of the Court rejected the proposition that the ‘but for’ test is the exclusive test of common law causation. The reasoning in March requires that the same test of causation be applied in determining whether a breach of contract is the cause of a particular loss for the purpose of assessing the damages recoverable for that breach.”[34]
[34]The Commonwealth of Australia v Amann Aviation (1991) 174 CLR 64 at 174-175
45Relying on the matters I have set out above at [21]-[36] I find that the plaintiff could not demonstrate on the balance of probabilities that the addition of the aerator arm at any time would have stopped the emission of HP from the effluent pipes. I further find that the plaintiff could not prove on the balance of probabilities that his HP infection was caused by ingestion of HP emitted from the Taylex unit. As a result, the plaintiff’s case for breach of contract must fail and the defendant’s no case submission on this cause of action also succeeds.
46I will enter judgment for the defendant and hear the parties as to ancillary orders.
47The parties will be given liberty for seven days to make application for any consequential orders.
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