In NSW, the Civil Liability Act 2002 (NSW) modified the common law of negligence. To be successful in a claim for negligence, you must prove that there has been a breach of duty of care, and that the breach of duty has caused harm and loss.
‘Causation’ is the principle that links the breach of duty to the harm suffered.
The concept of “cause and effect” is well known to us all. However, the concept of causation, which derives from the Civil Liability Act, is not so well understood or straightforward.
There are two primary elements that are considered when determining whether negligence caused harm, and these are set out in section 5D(1) of the CLA:
- Factual causation: whether the negligence was a necessary condition of the harm; and
- Scope of liability: whether it is appropriate for the negligent person’s liability to extend to the harm so caused.
Factual causation is a historical enquiry into what has occurred. Scope of liability is more a matter of policy, and includes consideration of whether or not and why responsibility for harm should be imposed on the negligent party.
There are cases where factual causation can be relatively simple, such as where a person is hit by a negligent driver and they suffer orthopaedic injuries as a result.
There are also cases in which causation is more difficult. Examples include where there has been a negligent delay in diagnosis of cancer. Here, it must be accepted that the individual has a serious underlying condition. The issue then becomes whether, and to what extent, the failure to diagnosis and treat the individual in a timely manner has materially contributed to the outcome.
The interpretation and application of s 5D of the CLA has been the subject of significant debate and case law. If you have a potential negligence claim, it is important that you seek legal advice to help navigate you through this difficult area. To arrange a free, no-obligation assessment of your case, contact Stacks Goudkamp on 1800 25 1800 or alternatively make an online enquiry.
Written by Laura Green.
Laura Green is a personal injury solicitor in Julie Mahony’s Practice Group. Laura works with Julie in a variety of personal injury claims, but has a special interest in representing plaintiffs in medical negligence claims.