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[1992] HCA 27
High Court of Australia
1992-06-25
McHugh JJ, Nicholson J, Toohey JJ, Gaudron J
Original judgment source is linked above.
High Court of Australia Mason C.J. Deane, Toohey, Gaudron and McHugh JJ. Bennett v Minister of Community Welfare [1992] HCA 27
ORDER Appeal allowed with costs. Set aside the order of the Full Court of the Supreme Court of Western Australia and in lieu thereof order that:
(i) the appeal to that Court be allowed with costs; and
(ii) the order of the Supreme Court of Western Australia (Nicholson J.) be set aside and in lieu thereof judgment entered for the appellant against the respondent with costs.
Remit the matter to the Full Court of the Supreme Court of Western Australia on the issue of damages.
The facts of this matter have been set out in the reasons for judgment prepared by Gaudron J.
It is not now in question that there was a duty of care owed by the Director of Community Welfare ("the Director") to the appellant and that there was a breach of that duty (for which, it is agreed, the Minister was vicariously liable). In the courts below, the duty of care appears to have been equated to, even derived from, a fiduciary duty owed by the Director to the appellant arising out of his statutory office as guardian. That fiduciary duty was a positive duty to obtain independent legal advice with respect to the possible existence of a cause of action on the part of the appellant arising out of the circumstances in which he sustained an amputation of four fingers of his left hand.
In March 1973, the appellant, then aged sixteen, had been committed to the care of the Department of Community Welfare for two years for treatment, discipline and training, pursuant to s. 34(a) of the Child Welfare Act 1947 WA ("the Act"). The consequences of the committal were that the appellant became a ward and, "[s]ubject to the regulations and the direction of the Minister", the Director became the guardian and had "the care, management and control" of the person and property of the appellant [1] . The Director was authorized to detain a ward in an institution (s. 10(2)(b)). The Director detained the appellant in the institution "Riverbank" and, whilst there in the care of the Department, he was put to work operating a bench saw without adequate instruction and adequate supervision. The saw lacked a proper guard. The injury occurred in those circumstances.
It is common ground that the appellant had an entitlement to recover damages at common law against the Minister in respect of his injury. His cause of action in respect of the injury became statute-barred by the Limitation Act 1935 WA before he became aware in 1982 of his entitlement to bring an action.
In the circumstances which we have outlined, the Director, after the appellant's injury, became subject to a duty of care owed to the appellant to avoid his suffering loss and damage arising from the possibility that he might not exercise an entitlement to bring an action for damages in respect of his injury and that the action might become statute-barred. The common law duty of care arose independently of the fiduciary duty which in no way displaced, qualified or derogated from the common law duty. The Director breached that common law duty by failing to obtain independent legal advice.
The question is whether the breach of duty caused the loss or contributed to the loss of the right to bring the action for damages against the Minister, by reason of the action becoming statute-barred. The answer to that question is complicated by the circumstance that, after the appellant was discharged from the care of the Department and ceased to be a ward in March 1975, he sought and obtained legal advice in 1976 with respect to the possibility of making a claim in respect of his injury. The advice then obtained was to the effect that "he had no claim other than at workers' compensation". The reference to "workers' compensation" was erroneous. The reference should have been to the proceeds of a policy of accident insurance taken out by the Department and to which the appellant was told he was entitled. The policy of insurance provided for the payment of compensation based on rates applicable under the Workers' Compensation Act 1912 WA as at 26 October 1970.
It will be necessary later in these reasons to look more closely at the circumstances in which this advice was given. For the moment, it is sufficient to say that the Minister points to the receipt by the appellant of this advice as the real cause of the appellant's decision not to bring an action against the Minister before the limitation period had expired.
In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense [2] . In resolving that question, the "but for" test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude [3] . The inadequacy of the "but for" test has emerged in cases in which a superseding cause, amounting to a novus actus interveniens, has been held to break the chain of causation which would have otherwise resulted from an earlier wrongful act or omission. In those cases, though the earlier wrongful act or omission may have amounted to an essential condition of the occurrence of the ultimate harm, it was not the true cause or a true cause of that harm.
In the present case, the Director's breach of duty satisfies the "but for" test, subject to two assumptions. If we assume that the Director had obtained correct independent legal advice as to the appellant's rights and that the appellant (or an appropriate person acting on his behalf) had acted on that advice by commencing an action within time, the relevant loss would not have occurred. In that sense, subject to these two qualifications, the Director's breach of duty was causally related to the loss.
The first of the two assumptions has no significance for the purposes of this case. The Director's duty was to obtain legal advice from a competent legal practitioner based on adequate and accurate instructions. The Minister does not, and could not, contend that advice sought from such a source and based on such instructions would not have acknowledged or asserted the existence of a cause of action at the suit of the appellant. The contrary advice subsequently provided to the appellant in 1976 does not detract from the accuracy of that statement because that advice was, as we shall make plain, the product of inadequate and incorrect instructions which were, to a substantial extent, obtained from the Department itself.
The second assumption stands in a different position. Although the appellant bore the general onus of establishing that the Director's breach of duty caused or contributed to his loss, it was common ground that the appellant would have made a claim and commenced an action for damages against the Minister, once he was legally able to do so, had he been made aware of his rights. The Minister has not contended in this Court or in the courts below that the appellant's case on the causation issue was deficient on this score.
It follows then that, subject to consideration of the legal significance of the obtaining of the advice in 1976, the appellant's cause of action would not have become statute-barred but for the Director's breach of duty. Had the Director performed his duty and procured the advice, that advice would have changed the course of events, namely, the inaction on the part of the appellant which led to the loss, and prompted instead a decision by him which would have both preserved and enforced his cause of action, thereby deflecting the loss which occurred. In this respect, the Director's breach of duty, his omission to do what he should have done, was a causal factor which continued to operate until the limitation period expired, unless the obtaining by the appellant of legal advice in 1976 had the effect of superseding the continuing operation of the Director's omission to procure independent legal advice.
In considering whether the obtaining of the 1976 advice had that effect, the first and the most significant point to be made is that, if the Director had performed his duty and obtained independent legal advice, there would have been no occasion for the appellant to seek advice in 1976. In other words, the appellant sought and obtained advice because, and only because, the Director was in breach of his duty of care. That circumstance in itself makes it difficult, if not impossible, to conclude that, in the situation described, the 1976 advice superseded the Director's breach of duty as the sole cause of the subsequent loss.
But that is not all. It is necessary to examine the 1976 advice, the circumstances in which it was given and the effect which it would have had if the Director had performed his duty. In or about the month of November 1976, after having left the custody of the Department, the appellant sought advice through the Legal Assistance Scheme sponsored by the Law Society of Western Australia. A barrister was retained by the Legal Aid Committee and instructed in the following terms:
To interview Wayne Kenneth Bennett in Fremantle Prison in relation to an offer of damages or compensation made to him arising out of an accident in the workshops at "Riverbank" and advise him in relation thereto and represent him generally in negotiations if you consider this advisable or necessary.
Costs in this matter have been provisionally costed at $200.00 for negotiation.
It seems that the barrister assigned to the matter interviewed the appellant before Christmas 1976 and, after hearing the appellant's account of the circumstances in which he sustained injury, advised him that he had no rights against the Department and that he should accept the insurance proceeds held by the Department on his behalf. The report made by the barrister to the Administrator of the Legal Assistance Scheme states that a proof was taken from the appellant, though there is no evidence as to the contents of that proof. The report goes on to say that inquiries were made "at S.G.I.O. the Department of Community Welfare (Mr. White and Mr. John Foulsham) and Inspector [of] Machinery of the Department [of] Labour".
After a consideration of the facts I was of opinion that Bennett a Ward of the State had been represented fully by the Director [of] Community Welfare and had received proper advice from the Director his Legal guardian.
The advice forwarded to Bennett was that in my view he had no claim other than at workers compensation.
It is an inevitable inference, as Rowland J. suggested in his judgment in the Full Court of the Supreme Court of Western Australia, that this advice was based on information given to the barrister by the Department. Although the report does not identify the advice given by the Director to the appellant, it was presumably advice to the effect that he had no rights against the Director or the Minister. In this respect, it is extremely significant that the Minister at all times, until the hearing of the appeal in the Full Court, maintained that there was no breach of a duty of care in connexion with the injury sustained by the appellant and that there was no duty to advise him of his rights. It follows that the barrister's advice given to the appellant in 1976 was not only wrong but also was based on information given by the Department itself, that information being clearly incorrect and self-serving as the Department neither advised nor sought to obtain advice for the appellant.
In these and other respects, the advice given by the barrister fell short of the advice which would be given in a normal solicitor-client relationship. Reliance was placed on information evidently provided by the Department without reference to any instructions which may have been obtained from the appellant. Indeed, the advice did not acknowledge or refer to the critical matters (lack of instruction in the use of the saw, lack of experience on the part of the appellant and the absence of a proper guard) which served to evidence breach by the Director of a common law duty to take care, let alone evaluate them. Of course, the advice was sought and obtained, not in the regular course of a solicitor-client relationship but in the context of a legal assistance scheme which may necessitate some departure from normal procedures. But, in the ultimate analysis, we are left with the firm impression that the advice fell well short of the independent legal advice which it was the duty of the Director to procure for the appellant.
Indeed, it is so unsatisfactory in terms of its content and the procedures on which it was based that it is impossible to conceive that the appellant would have been dissuaded by this advice from commencing an action against the Minister had the appellant earlier had the benefit of advice from a lawyer, procured by the Director, that he had a good, or even a reasonable, cause of action against the Minister. In this situation, the advice given in 1976 did not supersede the Director's breach of duty as the cause of the relevant loss.
In our view, for these reasons, the primary judge and the majority in the Full Court were mistaken in classifying the obtaining and the receipt of the 1976 advice as a novus actus interveniens. In reaching that conclusion, their Honours appear to have been of the opinion that, on account of the 1976 advice, the loss would have occurred notwithstanding the Director's breach of duty in omitting to obtain independent legal advice. That opinion proceeded, at least in part, on the footing that, by obtaining advice in 1976, the appellant achieved what he would have achieved had the Director discharged his duty to obtain independent legal advice. In the light of what we have already said, we cannot accept that line of reasoning.
It is unnecessary for us to consider what would have been the position in the event that the advice obtained by the appellant in 1976 constituted independent legal advice conforming to normal standards and procedures. Whether such advice would have constituted the supervening cause or a concurrent cause along with the Director's omission to obtain advice is an interesting and, on the facts as we see them, an academic question. In order to answer that question, it might be necessary to consider the view that there is no real distinction between breach of duty and causation [4] , as well as the question whether a failure to take steps which would bring about a material reduction of the risk amounts to a material contribution to the injury. These questions have been considered in Canada in the context of a possible shift in the onus of proof [5] but it seems that the problem still awaits final resolution. There is no occasion to consider it here.
For the foregoing reasons we would allow the appeal, set aside the judgment of the Full Court of the Supreme Court and, in lieu thereof, allow the appeal to that Court. Judgment should be entered for the appellant and the matter should be remitted to the Full Court on the issue of damages.
In March 1973 the appellant, Wayne Kenneth Bennett, was committed to the care of the Department of Community Welfare ("the Department") and, pursuant to s. 4 of the Child Welfare Act 1947 WA, he then became a ward of the State. He was confined to Riverbank, a detention centre. He was aged sixteen and was put to work operating a bench saw in the woodwork shop. On 23 April 1973, some few weeks before his seventeenth birthday, he was feeding a length of timber into the saw when the fingers of his left hand were amputated.
It is accepted that Mr. Bennett was neither adequately instructed nor adequately supervised in the use of the saw. Moreover, the saw was not properly guarded. It is also accepted that, had proceedings been brought within time, he was entitled to recover common law damages for his injury. Mr. Bennett did not become aware of his right in that regard until April 1982. By that time any claim that he might have made was barred by the Limitation Act 1935 WA.
In this action, which was commenced in 1983, Mr. Bennett claims damages for the loss of his right to bring proceedings with respect to the injury he suffered in 1973. The amended statement of claim asserts a breach of duty by the Director of Community Welfare ("the Director") to secure independent legal advice for him with respect to that injury.
It is not now disputed that there was a duty on the part of the Director as claimed in these proceedings, that there was a breach of that duty and that, if liability arises from that breach, it attaches to the Minister vicariously. However, at all stages liability has been denied on the basis that, in 1976, Mr. Bennett obtained legal advice with respect to his 1973 injury, which advice was to the effect that he had no right of action at common law. That advice was wrong and, according to the argument made on behalf of the Minister, it was the cause of Mr. Bennett's losing his right to bring proceedings for damages for personal injury.
It is necessary to give a brief account of the legal advice given in 1976. Mr. Bennett was then aged twenty and his guardianship had come to an end with the expiry of the period of his committal on 7 March 1975 [6] . He was in prison. He apparently made contact with those administering the Legal Assistance Scheme of the Law Society of Western Australia, and a barrister was asked "to interview [him] in Fremantle Prison in relation to an offer of damages or compensation made to him arising out of an accident in the workshops at "Riverbank" and advise him in relation thereto and represent him generally in negotiations if you consider this advisable or necessary."
Mr. Bennett had not received an "offer of damages or compensation". Instead, he had received or had been told that he was entitled to receive certain moneys. A sum of money equal to the amount payable under workers' compensation legislation for the physical loss suffered had been paid to the Director pursuant to a personal accident insurance policy which the Department had taken out. That money had been invested for or on account of Mr. Bennett. In December 1976 a barrister advised Mr. Bennett that "he had no claim other than at workers' compensation". It seems that the barrister and Mr. Bennett both regarded the money which had been invested and which was treated by the Legal Assistance Scheme as "an offer of damages or compensation" as money paid in satisfaction of an entitlement to receive workers' compensation.
The matter came on for hearing before Nicholson J. in 1988. Mr Bennett gave evidence to the effect that, relying on the legal advice given to him in 1976, he took no step to claim damages for the injury suffered at Riverbank in 1973. It was held that the 1976 advice constituted a novus actus interveniens and it, rather than the Director's breach of duty, caused Mr. Bennett to lose his right to claim damages for the injury to his hand. A verdict was entered for the Minister. However, in case the decision on causation might be wrong, his Honour proceeded to assess general damages at $20,000 and special damages at $1,932.22. By majority (Pidgeon and Seaman JJ., Rowland J. dissenting), an appeal to the Full Court of the Supreme Court of Western Australia was dismissed.
Mr. Bennett now appeals to this Court seeking orders that a verdict be entered in his favour, that the judgments of Nicholson J. and of the Full Court be set aside, that the matter be remitted to the Full Court on the question of damages and, in particular, to determine the grounds of appeal going to the manner in which damages were provisionally assessed by Nicholson J. Those grounds of appeal were not dealt with by the majority in the Full Court, their Honours having determined the appeal on the issue of causation.
It is now settled that, in the context of tortious liability, questions of causation are questions of fact to be answered as a matter of common sense and experience [7] . And this is so whether the issue is, as is usually the case, whether some act caused [8] or contributed [9] to a loss or injury, or, as in this case, whether some other act (a novus actus interveniens) broke the chain of causation.
Notwithstanding that it is a question of fact, causation is an issue which may sometimes attract the intervention of an appellate court, either in application of the principles established in Warren v Coombes [10] or because the question has been determined in a way that involves an error of law [11] . In my view, the approach adopted in this case, both at first instance and by the majority in the Full Court, involved an error of law in that there was a failure to have proper regard to the circumstances that would have existed had the Director obtained independent legal advice for Mr. Bennett.
The case against the Minister was based on an omission or failure to act, rather than on the doing of some positive act. There are occasions when a failure to do something may have a direct physical consequence such that the failure and the consequence may together be viewed as a positive act. Thus, a failure to keep a proper look out may lead directly to one motor vehicle being driven into another. In situations of that kind the physical act of driving one car into another, rather than the failure to keep a look out, will ordinarily be treated as the act by reference to which questions of causation are to be answered. And there are occasions when an omission or failure to act, although not attended by any physical act, is properly treated as a positive act. Thus, where silence gives rise to an inference that a particular state of affairs does or does not exist, a failure to inform may be treated as a misstatement of fact [12] . Again, in cases of that kind questions of causation may be approached as though the positive act had, in fact, occurred. But this case, so far as it involves the Director and, vicariously, the Minister, does not fall into either of those categories: it does not involve any positive act and it does not involve an omission which can be treated as a positive act. It must be approached on the basis of omission and nothing else.
Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, fall for analysis in a way that differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act, questions of causation are answered by reference to what, in fact, happened. In the case of an omission, they are answered by reference to what would or would not have happened had the act occurred [13] . In that exercise, the larger philosophical questions are brushed aside and the issue is approached on the basis that "when there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm" [14] .
In practice, it is not always necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a "breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty" [15] .
And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed [16] , generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect [17] , or that the injury would have occurred even if the duty had been performed [18] , it will be taken that the breach of the common law duty caused or materially contributed to the injury. However, the question whether some supervening event broke a chain of causation which began with or which relates back to an omission or a failure to perform a positive duty, is one that can only be answered by having regard to what would or would not have happened if the duty had been performed. It is only by undertaking that exercise that it is possible to say whether the breach was "still operating" [19] , or, continued to be causally significant when the harm was suffered.
The question of causation was answered by the majority in the Full Court without regard to what would or would not have happened had the Director obtained independent legal advice for Mr. Bennett. As already indicated, that approach was wrong. At first instance, Nicholson J. adverted to an aspect of what would have happened and observed that "[t]o find [that the Director's failure in this regard caused the loss sustained by Mr. Bennett] is to assume that the advice would necessarily have been to the effect that he should issue proceedings."
The precise advice that Mr. Bennett would have received and the possibility that he might have received incorrect advice - a matter which loomed large in argument in this Court - are matters which cannot, in my view, be brought to bear in determining whether the Director's breach continued to be causally significant when Mr. Bennett's action became statute-barred.
There are two aspects to the question whether performance of a duty would have averted the loss or injury suffered. The first is the general sufficiency of the duty to avert or prevent harm of the kind in issue. The second involves a consideration of what would or would not have happened in the particular circumstances of the case. As has been seen, it is not always necessary to consider the second aspect of the question. And it is rare, indeed, that it is necessary to consider the first aspect. In the first place, proceedings are not usually brought for breach of a duty that is not or would not have been efficacious to avert or prevent the harm suffered [20] . And so far as general sufficiency is involved in the question of causation, there is usually no reason to separate or distinguish the question of breach of a common law duty from that of causation [21] . That is because a duty is imposed by the common law by reason that it is a precaution which a reasonable person in the position of the person sued would have taken to prevent a foreseeable risk of harm of the kind suffered [22] . Thus, questions of the sufficiency of the precaution to avert the harm are inevitably subsumed in the finding that there was a duty: a precaution is not classified as "reasonable" unless it can be said that its performance would, in the ordinary course of events, avert the risk that called it into existence.
The possibility that Mr. Bennett would not have been advised to issue proceedings or, if it be different, that he might have received wrong advice must have been taken into account by Nicholson J. in determining whether there was a duty on the part of the Director to obtain independent legal advice as claimed. The finding that there was a duty could only have been made on the basis that his Honour was satisfied, on the balance of probabilities, that in the ordinary course of events and by reason of that advice, Mr. Bennett would have been made aware of his right to recover damages and, thus, put in a position to bring proceedings within the time fixed by the Limitation Act. Consistency required that his Honour approach the question whether the breach continued to have causal significance when the appellant's action became statute-barred on that same basis, and not on the basis of some possibility that was set at naught by the finding that there was a duty of care as claimed.
It might be said that, where questions of causation depend on hypothetical considerations, allowance should be made, as in the assessment of damages, for the possibility that some event would not have occurred [23] . Possibilities, if they are not fanciful, must be taken into account, at least in a general way, when ever causation or the related issue of prevention is in issue. But questions of that kind are not answered "maybe" or, even, "more probably than not". They are answered "yes" or "no" depending on the probabilities for or against. In this respect, they are indistinguishable from the question whether an event happened [24] where possibilities are taken into account but, once the question has been answered, those possibilities have no further bearing on the matter. And as already indicated, the question whether independent legal advice would have been sufficient, in the ordinary course of events, to prevent Mr. Bennett from losing his right to bring proceedings for his 1973 injuries was, in effect, answered by the finding that there was a duty on the Director to obtain such advice for him. Indeed, the question whether the chain of causation was broken by the erroneous advice received only arises on the basis that that independent legal advice would ordinarily have had that result.
For the purpose of considering what would or would not have happened if the Director had discharged his duty, it is necessary to have some regard to the duty itself. The duty may be likened to the duty to warn or the duty to instruct a person who might otherwise be at risk of injury. The immediate effect of the duty is to provide that person with information which he can use to protect himself. So too, Mr. Bennett would have been provided with information if the Director had discharged his duty in this case. And, consistent with the existence of that duty, it must be taken that that information would have enabled him to bring proceedings within the time fixed by the Statute of Limitations.
Ultimately it was the lack of information which put Mr. Bennett in the position whereby he lost his right to bring action to recover damages with respect to his 1973 injuries. That lack of information was clearly referable in the first instance to the Director's breach of duty. And it remained referable to that breach notwithstanding efforts on Mr. Bennett's part to obtain legal advice. That is because there would have been no occasion for him to seek further legal advice through the Legal Assistance Scheme had he been correctly advised in the first place. And, as already indicated, that is the basis on which this case must be approached.
It is common ground that Mr. Bennett wished at all times to pursue a claim for damages with respect to his 1973 injuries and would have done so if he had known of his right in that regard. As earlier indicated, his want of knowledge was at all times referable to the Director's failure to obtain independent legal advice for him. In that sense, it caused or contributed to the loss or damage which he suffered. Thus, the appeal should be allowed. The judgment of the Full Court of the Supreme Court of Western Australia should be set aside and, in lieu thereof, the appeal to that Court should be allowed. A verdict should be entered for the appellant and the matter should be remitted to the Full Court on the question of damages.
This appeal is brought against an order of the Full Court of the Supreme Court of Western Australia dismissing an appeal against an order of Nicholson J. in that Court. The order of Nicholson J. dismissed an action brought by the appellant claiming damages for the loss occasioned by the vicarious failure of the respondent ("the Minister") to obtain legal advice on behalf of the appellant in respect of a cause of action for personal injury which became barred by the Limitation Act 1935 WA ("the Act"). The question in the appeal is whether the Minister is liable for the loss when, independently of the Minister and his Department, the appellant subsequently received and acted upon erroneous legal advice that he had no cause of action for damages in respect of that injury.
The appellant was born on 22 May 1956. On 7 March 1973, he was placed under the care of the Department of Community Welfare ("the Department") for a period of two years. By statute, he became a ward of the State; the Director of the Department of Community Welfare ("the Director") became his legal guardian. The appellant was placed in Riverbank, a detention centre, where he was trained in woodwork. On 23 April 1973, he amputated the four fingers of his left hand while feeding a piece of timber through a circular saw which was not properly guarded. The appellant was not properly instructed or adequately supervised in respect of the use of the saw. Those facts gave him a right of action against the Minister for damages in respect of his injuries.
The appellant did not become aware of his right of action until 1982 by which time the right had been extinguished by the Act. At no time during the guardianship of the appellant or later did the Director arrange for legal advice to be given to the appellant in respect of the injury. Perhaps the Director thought that the appellant's rights were exhausted by the receipt by the Department on 17 September 1973 of the sum of $5,673 on behalf of the appellant pursuant to the terms of an insurance policy issued by the S.G.I.O. This sum together with interest was paid to the appellant on or about 18 March 1977. Whatever may have been the reason for the Director's failure to obtain competent legal advice on behalf of the appellant, the Minister does not now dispute that that omission of the Director constituted a breach of the duty of care which the Director owed to the appellant. Nor does the Minister dispute that he is vicariously responsible for that omission of the Director. The Minister's defence is that any causal connexion between the Director's breach of duty to the appellant and the appellant's loss of his right of action was severed by independent legal advice which the appellant received and acted upon between 1976 and the date upon which his right of action became barred by the Act.
In November 1976, while the appellant was in custody in Fremantle Prison, he sought legal advice concerning his injury. His application was made under the Legal Assistance Scheme which was sponsored by the Law Society of Western Australia. A Legal Aid Committee instructed a barrister to interview the appellant "in relation to an offer of damages or compensation made to him arising out of an accident in the workshops at "Riverbank" and advise him in relation thereto and represent him generally in negotiations". The barrister interviewed the appellant some time before Christmas 1976. The appellant testified that the interview took "fifteen or twenty minutes at the most" and that the barrister had told him that the Department "had put some money aside" and that in his opinion there "was no further action or claim". A copy of the barrister's notes of the interview were in evidence. They consist of twenty-seven lines of handwritten notes. Sparse as they are, they nevertheless suggest a case of common law negligence on the part of officers for whose conduct the Minister was vicariously responsible. The notes record, among other things, the circumstances of the accident, the plaintiff's age at the time, which was sixteen, and the statement "Never had any training in use of circular saw". In a letter to the Administrator of the Legal Assistance Scheme, the barrister said that he had made inquiries at the S.G.I.O., the Department of Community Welfare and the Department of Labour. He said that in his opinion the appellant "had been represented fully by the Director and had received proper advice from the Director". The barrister also said that he had forwarded advice to the appellant that "he had no claim other than at workers' compensation". The context makes it clear that the reference to workers' compensation was a reference to the appellant's entitlement under the insurance policy.
Nicholson J. held that, by reason of the negligence of the officers of the Department, the appellant had had a cause of action for damages against the Minister. His Honour also held that the Director "owed a fiduciary duty to [the appellant]; that included in that duty was the obligation to assert rights on his behalf; that in relation to a possible action for negligence arising from the accident in the premises occupied by the guardian, the guardian was in a position of conflict with the [appellant]; and that being such position it was the duty of the guardian to obtain for the [appellant] independent advice". The learned judge concluded that the duty continued until the conclusion of the guardianship on 7 March 1975 and that the failure of the Director to obtain independent legal advice at any time during that period constituted a breach of the duty. However, his Honour held that, after the appellant received legal advice in 1976, the reason for him "not issuing proceedings was the nature of the legal advice which he received, not the defendant's breach of duty in not getting him legal advice". He concluded that the causal connexion between the appellant's harm and the Director's breach of duty was broken by the act of the appellant in obtaining and acting upon the legal advice.
Having regard to his Honour's finding that the Minister was in breach of a fiduciary duty, it might have been thought that the action of the appellant was one brought in the exclusive equitable jurisdiction "to enforce compensation for breach of a fiduciary obligation" [25] . If that jurisdiction had been invoked, there would be much to be said for the view that the Minister could not escape liability to compensate the appellant even if the receipt of legal advice by the appellant in 1976 constituted a novus actus interveniens [26] . In Caffrey v Darby [27] , where trustees had been guilty of neglect in not recovering a trust asset, the Master of the Rolls said:
if they have been already guilty of negligence, they must be responsible for any loss in any way to that property: for whatever may be the immediate cause, the property would not have been in a situation to sustain that loss, if it had not been for their negligence If the loss had happened by fire, lightning, or any other accident, that would not be an excuse for them, if guilty of previous negligence. In Re Dawson (deceased) [28] , Street J. said that "causation, foreseeability and remoteness do not readily enter into the matter". 1. Nocton v Lord Ashburton , [1914] A.C. 932, at p. 946; and see Davidson, "The Equitable Remedy of Compensation" Melbourne University Law Review, vol. 13 (1982) 349. 2. Caffrey v Darby (1801), 6 Ves. Jun. 488 [31 E.R. 1159]; London Loan & Savings Co. v Brickenden , [1934] 3 D.L.R. 465, at p. 469; Re Dawson (deceased); Union Fidelity Trustee Co. Ltd. v Perpetual Trustee Co. Ltd. , [1966] 2 N.S.W.R. 211, at p. 215. 3. (1801) 6 Ves. Jun., at p. 496 [31 E.R., at p. 1162]. 4. [1966] 2 N.S.W.R., at p. 215.
However, the case for the appellant was pleaded as an action for damages for common law negligence and not for equitable compensation. Moreover, notwithstanding the reference by Nicholson J. to a breach of fiduciary duty, his Honour decided the case on the basis that it was one involving a claim for damages for breach of a common law duty of care. That was also the way that the case was dealt with in the Full Court. At this stage of the proceedings, it would not be proper to approach the case on a basis which so fundamentally departed from the way in which the parties have hitherto conducted the litigation.
Nevertheless, it is not open to doubt that, in addition to the fiduciary duty which the Director owed to the appellant, the circumstances of the guardianship and the injury to the appellant while under the care and control of the Director gave rise to a common law duty on the part of the latter to take reasonable care to ensure that the appellant did not suffer economic loss by not being advised of his rights in respect of that injury. In this Court, the Minister did not dispute that the Director was in breach of his duty in not obtaining or arranging independent legal advice for the appellant.
In the Supreme Court, different opinions were expressed as to the date upon which the appellant suffered loss by reason of his claim in respect of the 1973 injury becoming barred by statute. Nicholson J. expressed the view that the action became barred on either 23 April 1979 or 25 June 1979. The reference to 23 April 1979 is explicable on the basis that that date was six years after the appellant sustained his injury. It is not readily apparent, however, why his Honour thought that 25 June 1979 was a relevant date although on that day the appellant wrote to the Director and stated that he still wished to obtain legal advice as to his entitlements in respect of the injury. In the Full Court, Rowland J., who dissented, said that, depending upon the construction of s. 47A of the Act, the action "became statute-barred on 23 April 1979 or 22 May 1980". The latter date was six years after the appellant turned eighteen and appears to represent the correct date upon which he lost his cause of action. That being so, the appellant did not sustain any financial loss until 22 May 1980. Until that date, the appellant had not suffered any loss because it was still open to him to commence an action for damages in respect of the injury which he sustained on 23 April 1973. The critical question in the appeal is whether the Director's breach of duty materially contributed to the loss which the appellant suffered on 22 May 1980.
Whether or not a causal connexion exists between a breach of duty and any harm suffered by the person to whom the duty is owed is a question of fact to be decided on the balance of probabilities [29] . The existence of the causal connexion is to be determined in accordance with common sense notions of causation and not in accordance with any philosophical or scientific theory of causation or any modification or adaptation of such a theory for legal purposes [30] . Moreover, the common law concept of common sense causation accepts that the chain of causation between breach and damage is broken for the purpose of attributing legal responsibility for that damage if there has been an intrusion of "a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic" [31] .
Upon the facts of this case the conduct of the appellant in acting on the legal advice which he received in 1976 did not constitute the intrusion of a new cause which broke the chain of causation which existed between the Director's breach of duty and the loss which the appellant suffered. First, the negligence of the Director and the advice of the barrister were separate and independent acts each of which directly contributed to the appellant's loss. Secondly, the Director's duty to obtain legal advice was a continuing duty which remained in existence after the guardianship had expired and after the barrister had given his advice in 1976.
The loss which the appellant suffered in 1980 was a direct result of the Director's breach of duty. If the Director had performed his duty, he would have arranged for the appellant to consult a legal practitioner of reasonable competence and skill in the field of negligence law and would have ensured that the practitioner was briefed with a full and accurate account of the facts of the case. The probability is very high that consultation with a practitioner, experienced in the field of negligence law, would have led to the institution of proceedings against the Minister for damages for negligence and that the appellant's cause of action would not have expired by effluxion of time. By itself, the account given by the appellant, as recorded in the notes of the interview in 1976, would have suggested a prima facie case of negligence which warranted a more detailed investigation. Performance of the Director's duty to take reasonable care that the facts were fully and accurately put before a competent practitioner would almost certainly have resulted in a competent practitioner advising that proceedings be instituted against the Minister. If the Director had performed his duty, it is more probable than not that the appellant would not have suffered any loss in 1980. The breach of duty by the Director was, therefore, a direct cause of the appellant's loss. The advice of the barrister was also a cause of the loss, but the breach of duty by the Director and the giving of the advice by the barrister were separate and independent acts.
It is "a well settled principle that when separate and independent acts of negligence on the part of two or more persons have directly contributed to cause injury and damage to another, the person injured may recover damages from any one of the wrongdoers, or from all of them" [32] . If a doctor has negligently omitted to diagnose a condition which leads to a patient's death, it is no answer to a claim of actionable negligence that subsequently another doctor negligently failed to diagnose the condition at a time when its ultimate consequence could have been avoided. Each negligent omission was a separate and independent cause of the patient's death. Nor does it make any difference to that conclusion, if the second doctor has stated positively that the patient was not suffering from that condition. The causal connexion between a defendant's negligence and the plaintiff's damage is negatived by the subsequent conduct of another person only when that conduct is "the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by defendant" [33] . When the subsequent conduct is a cause of the damage but is unrelated to the situation created by the earlier negligence, the subsequent conduct and the earlier negligence are treated as separate and independent causes of the damage. The omission of the Director to obtain independent and competent legal advice as to whether the appellant had a right of action was, therefore, as much a cause of the appellant's loss as the subsequent advice of the barrister that he had no cause of action. Each was a separate and independent cause of the appellant not instituting proceedings for damages before 22 May 1980.
To hold that the breach of duty on the part of the Director was not a cause of the appellant's loss would be to fall into the error of assuming that the reason for the appellant not taking action after 1976 and the cause of his loss were one and the same thing. Even if contrary to my view (see below), the Director was not in breach of duty or his breach did not continue during the period Christmas 1976 to 22 May 1980, his original breach of duty was still a cause of the loss which the appellant suffered on the latter date. It was a cause of the loss because the loss would have been avoided if the Director had performed his duty prior to Christmas 1976. On the hypothesis that the barrister's advice was the sole reason that proceedings were not instituted after Christmas 1976, there were, nevertheless, two separate and independent causes of the loss which the appellant ultimately suffered in May 1980: (a) the failure to commence proceedings in the period before Christmas 1976 as the result of the Director's breach of duty; and (b) the failure to commence proceedings after that date as the result of the barrister's advice.
The notion that the Director had no duty to obtain independent advice for the appellant after Christmas 1976 rests on the assumption that the Director's duty to obtain independent legal advice for the appellant was broken once and for all at the expiration of a reasonable period after 23 April 1973 or, at all events, came to an end on the termination of the guardianship on 7 March 1975. However, the terms of the duty which the Director owed to the appellant demonstrate that it was a duty which continued until 22 May 1980. It was a general duty to take such steps as were necessary to obtain independent legal advice for the appellant so as to avoid the loss which would arise if the appellant did not pursue any rights which he had in respect of his injury. No doubt the failure to carry out the duty within a reasonable period constituted a breach. But it is impossible to accept that the rights and liabilities of the appellant and the Director were fixed once and for all upon the expiration of that period even though it expired during the period of the guardianship. The distinction between a duty which is broken once and for all on a particular day and a duty which is a continuing one despite its breach is never easy to draw. But here the particular duty to obtain independent legal advice arose out of the more general duty of the Director to care for the welfare of the appellant. Moreover, it arose out of the guardianship and out of circumstances which occurred during the course of the guardianship. That being so, the better view is that it was a continuing duty to avoid economic loss to the appellant as the result of his injury occurring during the guardianship rather than a duty to obtain advice within a reasonable period or by 7 March 1975. Once the Director became charged with the duty, it continued to bind him until it was performed or discharged. It did not end on the day when the appellant was discharged from the Director's custody and care. The duty, having arisen during the period of the Director's guardianship, continued while it could be fulfilled. Consequently, the duty of the Director was still operative as at 22 May 1980. His failure to fulfil it before that date was a cause of the loss which the appellant suffered on that date, notwithstanding that the appellant, of his own motion, sought legal advice in 1976.
Bennett
Minister of Community Welfare