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HG Insurance Alert: Husband succeeds on causation over wife’s death on appeal – 26 September 2014

On 20 August 2004, the plaintiff’s partner was fatally injured when the car she was driving ran off the road and hit a tree at Kingsvale in New South Wales.  Harden Shire Council (Council) was at that time carrying out road works on the section of road where the accident occurred.

The plaintiff sued Council in negligence for damages arising from nervous shock and for dependency under the Compensation to Relatives Act 1897 (NSW).  He alleged that the accident was caused by loose gravel on the road surface and that Council failed to provide adequate signage to indicate that the road had been resurfaced and that motorists should reduce their speed.

In this Alert, Senior Associate Brooke Jacobs and Solicitor Hannah Staunton discuss the case and summarise key points from the judgment.

Decision at first instance

The trial judge accepted that Council had breached its duty of care to the plaintiff in failing to erect speed reduction signage on approach to the road works and warning signage indicating that the road had been resurfaced.

However, the trial judge did not accept that Council’s failure to erect signage had been causative of the accident.  The trial judge had regard to 43A of the Civil Liability Act 2002 (NSW).  This section mirrors section 36 of the Civil Liability Act 2003 (Qld).

Section 43A provides that “any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give raise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.”  The trial judge was satisfied that actions of Council in failing to erect signage were not “so unreasonable” as to negate the civil liability immunity afforded by the section.

The plaintiff therefore failed at first instance.  He appealed the decision to the New South Wales Court of Appeal.

Issues on Appeal

The plaintiff contended that the trial judge had erred in:

  • holding that the immunity found in section 43A of the Civil Liability Act 2002 (NSW) applied to the case;
  • finding that the plaintiff had not established a breach of duty to the standard required; and
  • failing to find that the accident was caused by Council’s negligence.

Central to the appeal was factual causation; whether the failure to provide signage had in fact caused the accident.

Decision on Appeal

The appeal was allowed 2:1, with Justice Basten dissenting particularly on the point of factual causation.

Chief Justice Bathurst and Justice Beazley analysed the evidence before the trial judge.  They relevantly found that:

  • the onus of proof for establishing causation rests with the plaintiff and the standard of proof is on the balance of probabilities as per section 5E of the Civil Liability Act 2002 (NSW) (section section 12 of the Civil Liability Act 2003 (Qld)).
  • determining factual causation involves nothing more than the application of the "but for test": Strong v Woolworths Limited [2012] HCA 5 and Wallace v Kam [2013] HCA 19.
  • the road surface was slippery as a result of the road works (described by one witness as akin to “walking on marbles”);
  • the plaintiff’s partner was a careful driver.  The only reasonable inference to be drawn from the circumstantial evidence was that, had signage warning of the road works and advising a reduced speed been erected, on the balance of probabilities she would have reduced her speed and safely navigated the curve;
  • Council’s omission to erect signage was conduct which no sensible public authority acting with due appreciation of its responsibilities would have decided to adopt and therefore the immunity in section 43A was not available to Council.

Key take away points

The take home points from this judgment are as follows:

  • In circumstantial cases, reasonable inferences may be drawn by the Court;
  • The onus of proof remains on the plaintiff to establish a breach was factually causative of the harm alleged;
  • The public authority immunities in section 43A of the Civil Liability Act 2002 (NSW) (sections 35-37 of the Civil Liability Act 2003 (Qld)) will not always be invoked, particularly where the authority’s actions have been “unreasonable” or not in keeping with the standard to be expected of an authority acting reasonably.

For more information on Insurance and Risk matters, please contact HopgoodGanim’s Insurance and Risk team.

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