In a NSW Court of Appeal decision handed down last week, New South Wales v Mikhael  NSWCA 338, the causation issue once again proved to be the plaintiff’s Achilles’ heel.
This is the second time this year in which the Court of Appeal has overturned a first instance decision, whilst still upholding the trial judge’s decision on duty of care and breach (cf: Garzo v Liverpool/Campbelltown Christian School Ltd  NSWCA 151, in respect of which there is a pending special leave application to the High Court).
It’s as if the Court is trying to send a message: just as in real estate terms it is important to buy a property in a good spot (‘location, location, location’) so too is causation something that plaintiffs need to consider closely before litigating.
The facts in Mikhael are interesting. A schoolboy sued the State of NSW regarding an incident in which another student (named “T” in the judgment) violently assaulted him after class. This had occurred following an argument between the plaintiff and T about 10 minutes before the end of the period. The teacher determined that by the end of the lesson things seemed to have cooled down between the two boys so did nothing further about it.
Only a few weeks prior, T had punched another student after football practice. So the duty of care in this case required the school to implement reasonable measures to avoid a foreseeable risk of T doing a similar thing again; it was unsuccessful in so doing.
The school did have in place a system for dealing with this kind of problem. Pursuant to this system, teachers at the school were in fact alerted to T’s involvement in the football-training assault. However, it was significant in the Court’s eyes that whilst the system had been followed and teachers advised, they were not told that the football practice assault occurred after only slight provocation of T. This is information with which the Court thought the teachers should have been armed but were not: breach of the school’s duty of care.
The question remained- what would the teacher of the class have done if armed with the additional piece of information that T was easily provoked? The plaintiff (as the respondent on appeal) filed a notice of contention setting out the kinds of measures the teacher could have taken: checking if T was hanging around after class waiting for a fight, escorting the plaintiff student to a position of safety and asking the plaintiff if he had any fear about T.
However, the Court found that even if these steps were taken, the assault would not in all likelihood have been averted (at ). For example, there was no description of where or what a position of safety might be and whether this required the plaintiff to be kept separate from other students for a certain period and if so for how long. The problem was compounded by the fact that the teacher in question had not been cross-examined at the trial about whether in her opinion, these kinds of measures would have stopped T from assaulting the plaintiff. She was adequately experienced and knowledgeable, and indeed in the best position, to give such a comment.
In re-stating the relevant legal principles, the Court confirmed that the ‘but for’ test was the applicable test when considering causation under section 5D of the Civil Liability Act; even in cases of negligent omission such as the instant. Guidance was found in the High Court’s decision in Adeels Palace v Moubarak (2009) 239 CLR 420 in which an angry restaurant patron had left premises and returned with a gun that once inside, he discharged to injure the plaintiff. The plaintiff contended that the restaurant should have had more security guards on duty but the HCA found that this would not have averted the shooting in any event. They would not or could not have stopped him.
But the most important ‘take-away’ from Mikhael is that the Court (at  and ) said that the ‘but for’ test is not concerned with possibilities about what might have happened had the necessary preventative action/measures been put in place. In this case, Beazley JA (with whom Allsop P and Preston CJ of the LEC both agreed) said that the plaintiff’s causation case amounted to ‘no more than a series of possibilities’. Instead, he needed to prove that any such steps would, on the balance of probabilities, have averted the harm suffered.
An “Achilles heel” is a fatal weakness despite overall strength. A perception of overall strength will often be somewhat justified when the case on duty and breach is strong. Nevertheless, a weak case on causation can have fatal consequences.