Factual causation and the ‘exceptional case’ provision under the Civil Liability Act 2002 (NSW).
Establishing causation can sometimes be a difficult and complex task, particularly in cases involving psychiatric injuries. Occasionally, in those types of cases, insufficient attention may be given to causation by a plaintiff who has a strong position on breach.
In cases where Civil Liability Act 2002 (NSW) (CLA) applies, a plaintiff must demonstrate both factual causation and scope of liability.1 If these cannot be demonstrated, the ‘exceptional case’ provision2 may be relied upon as a fall back.
The requirements necessary to satisfy these provisions were considered in the recent decision of Carangelo v State of New South Wales  NSWCA 126 where the New South Wales Court of Appeal was asked to determine whether an ex-police officer (plaintiff) had established that his psychiatric injury was caused by the State of New South Wales (State).
The plaintiff commenced proceedings against the State (being vicariously liable for the Commissioner of Police) seeking damages for a psychiatric injury allegedly suffered during his employment as a police officer. He alleged that the State failed to take reasonable precautions against the risk of his suffering psychiatric injury at two points in his career and, had these precautions being taken, he would not have suffered his injury.
At first instance, the primary judge held that although the State had breached its duty of care to the plaintiff, those breaches had not caused or contributed to the psychiatric injury.
The plaintiff appealed, arguing that in finding that causation had not been established, the judge misapplied s 5D of the CLA.
The Court of Appeal’s Decision
One of the elements to satisfy causation under s 5D(1) of the CLA is that the negligence must be a necessary condition of the harm (factual causation).3
The plaintiff alleged that, had the State offered pastoral or psychiatric assistance at two distressing points in the plaintiff’s employment, he would not have developed his injury. On this basis, the plaintiff contended that factual causation was established.
In its defence, the State alleged that any breach was not material to the plaintiff’s injury, which the State argued was caused by other unrelated matters.
When considering whether the State’s negligent conduct caused the plaintiff’s injury, it was necessary for the court to determine whether the casual connection was the ‘more probable’ inference. The court emphasised however that a mere increase in the risk of injury did not establish causation – noting that the risk of an injury and its cause are quite different things.
Based on the expert evidence presented, the court considered that, even if the breaches had not occurred, there would not have been a relevant difference in the plaintiff’s psychiatric injury. The court emphasised that the plaintiff had been subject to numerous stressful events during his career which had caused psychiatric problems. The failure to provide pastoral or psychiatric assistance did not cause the injury. Further, the court considered that the intervention of pastoral or psychiatric assistance would not have prevented, or even alleviated to a significant degree, the psychiatric injury (regardless of its cause).
On the balance of probabilities, the court found that there was nothing to establish that the plaintiff’s outcome would have been any different if he had been offered pastoral or psychiatric assistance at the relevant times. In reaching this conclusion, the court stressed that causation is not established merely because the allegedly tortious act increased the risk of injury:4
‘Loss of a chance of a better outcome, which falls short of a likelihood, is insufficient to impose liability.’5
While not in the context of a claim under the CLA, this approach was also adopted in the recent Queensland Court of Appeal decision of Prasad v Ingham’s Enterprises Pty Ltd  QCA 147. In Prasad, the court found that, even though breach had been established, ‘there was no evidence any measures taken by the [defendant] would probably have made a difference’. Emphasis was placed on determining whether the measures the defendant allegedly failed to employ would have probably protected the plaintiff from injury, rather than could or might have.
Section 5D(2) of the CLA makes a special provision for cases where factual causation cannot be established. The provision permits a finding of causation in ‘exceptional cases’, notwithstanding that the defendant’s negligence cannot be established as a necessary condition of the occurrence of the harm.
The section states that, in determining whether a matter is an ‘exceptional case’:
‘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.’
What constitutes an ‘exceptional cases’ is yet to be exhaustively determined in case law. However, generally, such a case will fall into one of two categories:6
- Where harm 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; or
- Where the same negligence of successive defendants was capable of causing the harm that resulted, but it is impossible to determine which of the defendants in fact caused the harm.
The plaintiff argued that, if factual causation did not exist, causation could be established for the purpose of s 5D(2) because the State’s breaches materially contributed to the injury.
The court was swift in dismissing the plaintiff’s submission on this section, noting that the plaintiff’s reliance on the provision was misplaced.
The court stressed that the plaintiff’s case was ‘not a case where there were various factors all of which may have, in some way, contributed to the Psychiatric Injury’.7 It was accepted that the plaintiff’s psychiatric injury was caused by various stressors during the course of his employment. The alleged breach was that the State failed to take steps which would have prevented or ameliorated the injury. However, the expert evidence was clear that the plaintiff’s position would not have been any different if those steps had been taken. The breach could therefore not be considered as having materially contributed to the injury.
As concluded by the court, ‘section 5D(2) cannot be called in aid simply because there is no evidence to support a contention as to the causation of injury’.8 Against that background, the court held that this was not an exceptional case where responsibility should be imposed on the State.
An important point arising from Carangelo is that a breach which only affects the existence or extent of an existing unrelated harm, will not necessarily be a breach which caused that harm. In this case, the plaintiff’s harm would have occurred regardless of the State’s breach. As such, factual causation was not established.
Further, even if a connection can be drawn between a breach and a harm, a plaintiff will need to do more than merely show that had the breach not occurred the harm might not have arisen. To establish factual causation, a strong connection needs to be established. For instance, if it is found that an employer breached its duty by failing to provide safer equipment for its workers, the plaintiff will need to establish that the harm would probably not have arisen had that safer equipment been provided. This is where expert evidence is crucial and needs to go beyond establishing a ‘possible’ relationship between breach and harm, and find a ‘probable’ relationship.
Finally, although the case did not shed much light on the parameters of s 5D(2), it emphasised that the provision is not simply a ‘Get Out of Jail Free’ card. The intent of the provision is to recognise that, in some circumstances, it may be appropriate to bridge the evidentiary gap between negligent conduct and harm. A plaintiff may take benefit from s 5D(2) if they can show that negligent conduct materially contributed to the harm / risk of harm, even if they cannot show that it was a necessary condition of the harm. Again, expert evidence will be critical.