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Causation

ACQ PL v Cook; Aircair Moree PL v Cook [2009] HCA 28. French CJ, Gummow, Heydon, Crennan & Bell JJ.

The High Court dismissed the appeals with costs. The Full Court detailed the background and submissions, noting reliance on and quoting from March v E & M H Stramare PL (1991) 171 CLR 506; [1991] HCA 12, and Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 525.

The Court [27]: “Not every lawyer has found the analysis of causation in March v Stramare helpful. But, without casting doubt on anything that was said in March v Stramare or in Wardley Australia Ltd v Western Australia, it is not necessary in construing s 10(1) to rely on any analogy with what was said in those cases, at least in the course of resolving the present appeals.

To this limited extent there is some force in the appellants' submissions. And quite independently of the Court of Appeal's translation of March v Stramare to s 10(1), one of the principal points extracted by the Court of Appeal from that case is uncontroversial, and was not controverted by the appellants – the proposition that there can be multiple causes of the damage suffered by a plaintiff.

Further, the context of the passage quoted from Mason CJ's reasons for judgment in March v Stramare reveals that Mason CJ was concerned merely to reject the ‘but for’ test as an exclusive criterion of causation.

It is true that but for the impact of the aircraft on the conductor the plaintiff would not have been injured; but the causal relationship between the impact and the injury was much closer than that, and did not rest exclusively on a ‘but for’ analysis.”

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Brasz v Dept of Ageing &c [2009] NSWWCCPD 62. Roche DP.

Dismissing a worker’s appeal that arbitrator Mr Minus, on 20.02.09, should have found injury to neck and back as well as shoulder, at [91] Mr Roche: “The burden of proof is not satisfied merely by evidence that it is possible that the causal relationship exists: see Spigelman CJ in Seltsam PL v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at 275 [80].

"However, as noted by McDougall JA (McColl and Bell JJA agreeing) in Nguyen v Cosmopolitan Homes [2008] NSWCA 246, at [61], ‘the inference of causation may be drawn from all of the evidence in the case, including expert evidence as to the possibility that the causal relationship exists’. Such an inference is not open in the present case because the assumption on which Dr Giblin and Dr Kam based their assertions of a possible connection, that the neck symptoms started on 26 March 2007, is incorrect.”

No costs. A: NSW Compensation Lawyers. R: McLean Lawyers.

Forst bridges heart hurt 28 WCMS>>

Gerry &c Koutsioukis &c v Bouza & Ors [2007] NSWWCCPD 185. Moore ADP.

61. In considering issues of causation, Kirby P in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 said:

"The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase "results from" is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death will not, of itself, be sufficient to establish that such death or incapacity "results from" a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question of whether the death or incapacity "results from" the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions." (at 463G to 464B).

62. This issue was considered by ADP Snell in Electrolux Home Products PL v Milenkoski [2006] NSWWCCPD 321 where he was required to consider whether the Arbitrator's finding as to liability by various parties was supported by the evidence....

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'There are cases where, in the absence of medical evidence, questions of causation can be resolved by 'using the common knowledge and experience of mankind': Nicolia v Commissioner for Railways (NSW) (1971) 45 ALJR 465 per Barwick CJ', per Snell ADP [65] in Smith v RTA [2008] NSWWCCPD 130, 04.11.08.

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"The rules governing causation at common law are those expressed in Luxton v Vines [1952] HCA 19; (1952) 85 CLR 35 and March v Stramare PL [1991] HCA 12; (1991) 171 CLR 506, namely, the test of common sense, with the onus of proof at all times being on the plaintiff”: Ipp JA in Flounders v Millar [2007] NSWCA 238 at [35].

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The question which [requires determination] is to be answered by enquiring whether there was a causal connection between the employment and the injury: Tarry v Warringah Shire Council [1974] 48 WCR 1, per Samuels JA at 8: Fire and Rescue New South Wales (formerly NSW Fire Brigades) v Guymer [2011] NSWWCCPD 38, per Mr O'Grady DP, 29.07.11.

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Conway v Jerram, Magistrate and NSW State Coroner [2011] NSWCA 319. Campbell JA.

30 His Honour [Barr J] did not accept that the interests of justice required there to be an inquest. He said, at [53]-[56]:

"Nevertheless, in construing the expression 'manner of death' in a broad way, the court must bear firmly in mind the limits to the coroner's jurisdiction.

"In 1826 Lord Bacon wrote this in his Maxims of the Law, Regula I:

'It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.'

...

31 The only reasons to doubt that those remarks are applicable to the present case are that Lord Bacon's Maxims is a work from 1597 (the 1826 date perhaps derives from the date of a reprint of Bacon's complete works that Google has digitised), and that the quotation from Lord Bacon originally appeared in a very different context to the present.

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