Loss of chance & civil liability legislation

Associate Professor Neil Foster has kindly noted a causation aspect of today’s High Court decision in Badenach v Calvert [2016] HCA 18. Although not a personal injury claim, French CJ, Kiefel and Keanne JJ at [41] said:

  1. The onus of proving causation of loss is not discharged by a finding that there was more than a negligible chance that the outcome would be favourable, or even by a finding that there was a substantial chance of such an outcome. The onus is only discharged where a plaintiff can prove that it was more probable than not that they would have received a valuable opportunity. To the extent that the majority in Allied Maples Group Ltd v Simmons & Simmons holds that proof of a substantial chance of a beneficial outcome is sufficient on the issue of causation of loss, as distinct from the assessment of damages, it is not consistent with authority in Australia and is contrary to the requirements of s 13(1)(a) of the Civil Liability Act.

That closing reference is to the Tasmanian Act, which provides:

 (1) Prerequisites for a decision that a breach of duty caused particular harm are as follows: (a) the breach of duty was a necessary element of the occurrence of the harm (“factual causation” ); (b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (“scope of liability”).

That judgment does not go on to expressly mention section 14 of the Tasmanian Act which states “In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact on which the plaintiff wishes to rely relevant to the issue of causation.“. However Gordon J at [94] notes that section 14 reflects the “general standard of proof” discussed in Tabet v Gett, a decision on a claim to which the civil liability legislation did not apply.




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