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CAUSATION AND REMOTENESS OF DAMAGE
& SCOPE OF LIABILITY
FACTUAL CAUSATION AT COMMON LAW AND UNDER THE CLA
Barnett v Chelsea and
Kensington Hospital
Management Committee
[1969] 1 QB 528
STOMACH BUG
P suffering stomach pains
Went to D, the hospital to
seek treatment
D refused to examine him
and sent him home
P died of arsenic poisoning
five hours later
family sued the hospital
Established the but fo test
Legal issue:
the cause of the death?
Held: D is not liable
P would have died even if the
treatment had been given promptly
negligence was therefore not
the cause of his death
March v Stramare (E &
MH) Pty Ltd (1991) 171
CLR 506 (Cases, p. 354)
PROTRUDING FRUIT
TRUCK
D thought it was safe to park
truck perpendicularly to the
road (protruding)
D placed hazard lights on
March (intoxicated) crashed
into the truck injured
Trial history
First instance, D negligent
and P contributory negligent
On appeal, applied the
Held: D was negligent
Satisfies test of causation;
his negligent parking of the
truck caused injury to P
Test for causation: common sense
(s5D of the CLA changes this;
)
Three inadequacies of the but for test
Exceptional cases i.e. two
hunters (Mason CJ & Deane J)
Intervening acts (Mason CJ)
Distinctions between mere
preconditions vs causes (Deane J)
Mason CJ
Causation is a question of fact
But for test must be tempered by
common sense principles
McHugh J diss
Leads to value judgements which
do not belong in factual causation
S5D CLA follows this view
