The New South Wales Court of Appeal in the case of Carangelo v State of New South Wales [2016] NSWCA 126 (Carangelo) recently considered the application of section 5D(2) of the Civil Liability Act 2002 (NSW) (CLA). Section 5D(2) makes a special provision for “exceptional cases” where factual causation cannot be established by the traditional common law “but for” test.  The Court of Appeal held that the section cannot be “called in aid simply because there is no evidence to support a contention as to the causation of injury”.[1]  In other words, the section cannot be used to bridge evidential deficiencies in proving that negligent conductcaused the harm or damage in question.

Multiple events and the “but for” test

When multiple events or acts cumulatively lead to injury, the “but for” test is “troublesome”.[2] In these situations, it is sufficient for the plaintiff to prove that the negligence “caused or materially contributed to the injury”.[3] Section 5D(2) of the CLA provides a special provision in relation to the assessment of causation in these “exceptional cases”. In essence, section 5D(2) requires the Court to consider whether liability ought be imposed on the negligent party. Mr Carangelo (the appellant, a long-serving member of the NSW Police Force who suffered psychiatric injuries) placed reliance upon this section when the evidence could no more than support a conclusion that he “lost a chance of an opportunity to avoid deterioration in his condition.”[4]

The appellant’s reliance upon section 5D(2) “misplaced”

In delivering the leading judgment, Emmett AJA said the section “cannot be called in aid simply because there is no evidence to support a contention as to the causation of injury”.[5] In other words, section 5D(2) could not be called upon to salvage the appellant’s case when the evidence could not establish that it would have been more likely than not that there would have been a different outcome if certain precautions would have been taken.[6]

Key takeaway — clarification

The scope of section 5D(2) has received clarification. Although the Court did not identify what an exceptional case is, the Court confirmed that the factual matrix of this case was not an “exceptional case”. To recognise what factual situations are not exceptional cases is, in our opinion, clarifying.