Judgment
1BASTEN JA : In proceedings in the District Court, the respondent, Mrs Leonilda Marcolongo, obtained a judgment against parties found to be responsible for causing damage to a building owned by her by removing supporting land. The appellant was the developer, the proportionate liability of which was found to be 25%. It challenges that judgment, asserting that its proportionate liability was a lesser figure. I agree with Campbell JA that the appeal should be dismissed with costs. Subject to the following qualifications, I also agree with his reasons.
2First, with respect to issue 1, namely the question whether Mr Young acted as a agent of the developer in contracting with MacDonald Sheetpiling (NSW 1) Pty Ltd, I agree that Mr Brown was not authorised to make admissions on behalf of the developer in respect of that issue. I do not, however, find it necessary to address the scope and operation of the Evidence Act 1995 (NSW) in respect of admissions.
3Secondly, with respect to issue 4, causation of damage, I agree that it is necessary to apply the provisions of s 5D of the Civil Liability Act 2002 (NSW). Once it is accepted, as it should be, that the negligence was a "necessary condition of" the harm suffered, it was incontestable that the appellant was responsible for such harm, at least in the present statutory context, for the amount of its apportioned liability. Its failure to take reasonable care related to the maintenance of support for the respondent's land. Its breach of duty was a cause of damage to that land and the respondent's building. The damage fell squarely within the area covered by the duty. It was therefore "appropriate" for the appellant's liability to extend to its proportion of the harm so caused, within the terms of s 5D(1)(b). In that circumstance, I do not find it necessary to express a view in relation to the matters discussed by Campbell JA at [239]-[260].
4Appeals to "commonsense" in the context of findings as to causation are usually little more than an exhortation to avoid over-sophisticated analysis. That exhortation should generally be accepted. The point at which careful analysis becomes necessary, and reliance on "common sense" unhelpful, is where there is a real risk that "common sense" conceals fallacious assumptions, illogical reasoning or plain careless thinking. This case does not raise such risks.
5CAMPBELL JA : Mrs Leonilda Marcolongo has at all relevant time owned land at 7 xxx Street Mona Vale (" No. 7 "), on which a building containing both shops and residential units was constructed. Lym International Pty Ltd, the Appellant, at all relevant times owned an adjacent property at 5 xxx Street Mona Vale (" No. 5 "). I will refer to it as the Developer. For the purpose of constructing a new building on its land, the Developer made arrangements through which first demolition work, then excavation work, was carried out. The excavation was intended to be the site of an underground carpark. The work of demolition and excavation was carried out in June to October 2002 by Mr Rod Young, who traded under the name of Modern Demolition.
6One particular wall on the northeastern corner of Mrs Marcolongo's property was in very close proximity to the boundary between No. 7 and No. 5.
7The side of the excavation adjacent to Mrs Marcolongo's property was shored up using the process known as sheet piling. The sheet piling was installed by a company called MacDonald Sheetpiling (NSW1) Pty Ltd (" MSP ").
8While the sheet piling was being installed on 20 July 2002, Mrs Marcolongo's building suffered damage as a result of, at least in part, some subsidence that affected its foundations.
9She brought proceedings in 2004 in the District Court, initially against the Developer and MSP. The trial did not take place until August 2009.
10We were informed that the extraordinary delay in bringing the case on for hearing was affected by the events involved a related piece of litigation that culminated in the High Court decision in Marcolongo v Chen [2011] HCA 3; (2011) 274 ALR 634.
11By the time of the trial, MSP had been deregistered. It had been insured by QBE Insurance (Australia) Pty Ltd (" QBE "). QBE came to be a party to the litigation. Both the trial and this appeal have been conducted on the basis that QBE is liable for whatever amount MSP might be liable for.
12Mr Young had at one time been a cross-defendant in the District Court proceedings, but he ceased to be a party, on the basis of an agreement between the remaining parties to the litigation. The effect of that agreement is one of the matters in dispute in this appeal.
13One of the causes of an action on which Mrs Marcolongo sued QBE and the Developer was negligence, based upon breach of the statutory duty of care contained in s 177 Conveyancing Act 1919 . The other was trespass, because some of the work involved in installation of the sheet piling involved incursions into the subsoil of Mrs Marcolongo's land.
The Legislation
14It is convenient to set out here the legislative provisions that were relevant to the causes of action.
15Section 177 Conveyancing Act was introduced into the legislation in 2000. It provides, so far as relevant:
"(1) For the purposes of the common law of negligence, a duty of care exists in relation to the right of support for land.
(2) Accordingly, a person has a duty of care not to do anything on or in relation to land (the supporting land ) that removes the support provided by the supporting land to any other land (the supported land ).
(3) For the purposes of this section, supporting land includes the natural surface of the land, the subsoil of the land, any water beneath the land, and any part of the land that has been reclaimed.
(4) The duty of care in relation to support for land does not extend to any support that is provided by a building or structure on the supporting land except to the extent that the supporting building or structure concerned has replaced the support that the supporting land in its natural or reclaimed state formerly provided to the supported land.
...
(8) Any right at common law to bring an action in nuisance in respect of the removal of the support provided by supporting land to supported land is abolished by this section.
...
(12) A reference in this section to the removal of the support provided by supporting land to supported land includes a reference to any reduction of that support."
16At the times relevant to this litigation the Environmental Planning and Assessment Act 1979 (" EPA Act ") contained a Part 4C, which included ss 109ZI and 109ZJ. Section 109ZJ was repealed by Schedule 4.2 of the Civil Liability Amendment (Personal Responsibility) Act 2002 , but that Schedule of the Act came into effect on 1 December 2004, after accrual of the various causes of action sued on in these proceedings.
17Section 109ZI contained some definitions that applied for the purposes of Part 4C:
" building action means an action (including a counter-claim) for loss or damage arising out of or concerning defective building work.
building work includes the design, inspection and issuing of a Part 4A certificate or complying development certificate in respect of building work."
18Because the definition of "building work" in s 109ZI was an inclusive one, it had the effect of expanding, for the purposes of Part 4C, the definition contained in s 4 EPA Act :
" building work means any physical activity involved in the erection of a building."
It is the definition in s 4, not its extension by s 109ZI, that is relevant to this case.
19Section 109ZJ relevantly provided:
"(1) After determining an award of damages in a building action ..., a court must give judgment against each contributing party for such proportion of the total amount of damages as the court considers to be just and equitable, having regard to the extent of that party's responsibility for the loss or damage in respect of which the award is made.
(2) Despite any Act or law to the contrary, the liability for damages of a contributing party is limited to the amount for which judgment is given against that party by the court.
(3) A contributing party cannot be required:
(a) to contribute to the damages apportioned to any other person in the same building action ..., or
(b) to indemnify any such other person in respect of those damages.
(4) In this section contributing party , in relation to a building action ..., means a defendant or other party to the action found by the court to be jointly or severally liable for the damages awarded, or to be awarded, in the action."
20Section 109ZJ allowed for apportionment of liability amongst defendants or other parties to an action. It did not make the more radical inroad on the common law concerning solidary liability that was made by the proportionate liability provisions of Part 4 of the Civil Liability Act 2002 , introduced into that Act by the Civil Liability Amendment (Personal Responsibility) Act. For the " apportionable claims " to which it applied, the Part 4 provisions permitted apportionment of the total damage among all the concurrent wrongdoers who had caused the relevant loss or damage, whether or not all of those concurrent wrongdoers were defendants or other parties in the action.
21It was common ground, both at the trial and on the appeal, that the excavation work that was carried out on the Developer's land was "building work" within the meaning of the EPA Act , and thus if both QBE and the Developer were liable for the damage sustained by Mrs Marcolongo's property, apportionment of the damages under s 109ZJ EPA Act was in principle possible.
The Result Below
22The District Court judge held that both the Developer and QBE were liable by reason of a breach of the duty of care imposed by s 177 Conveyancing Act . He took the view that his finding on liability under s 177 made it unnecessary for him to decide the trespass claim. No complaint is made on the appeal about the judge's failure to decide the trespass claim.
23The judge assessed the quantum of damage that Mrs Marcolongo had suffered as being $1,554,574.50. He apportioned responsibility for the damage 25% to the Developer, and 75% to QBE. Accordingly, he entered judgment for Mrs Marcolongo against the Developer for $388,643.62, and judgment for Mrs Marcolongo against QBE for $1,165,930.88. Judgments of that size were possible because the parties had consented to the monetary limit of the ordinary jurisdiction of the District Court being extended.
Issues on the Appeal
24The present appeal is brought by the Developer. It does not dispute that Mrs Marcolongo's property was damaged, or the quantum of damages. Its contention on the appeal is that the judge was wrong in finding that it had any liability to Mrs Marcolongo at all, or alternatively that the judge should have found that its proportionate liability was less than 25%.
25QBE does not cross-appeal. It has paid to Mrs Marcolongo the amount of the judgment given against it.
26The Developer submits that there are four reasons why its appeal should succeed. It submits that:
- The judge erred in finding Mr Young was the agent of the Developer for the purposes of entry into the contract with MSP.
- The judge erred in failing to consider, or alternatively misconstruing, the agreement that the parties entered at the time that Mr Young ceased to be a party to the litigation.
- The Developer did not, within the meaning of s 177 of the Conveyancing Act , "do anything in relation to" its own land that removed the support provided by that land to Mrs Marcolongo's land. It submits that in finding to the contrary his Honour acted without evidence.
- Contrary to the judge's finding, the matters that his Honour found to have been breaches of duty by the Developer were not causative of any of the damage sustained by Mrs Marcolongo's building.
27Concerning the first of those grounds of appeal QBE, by Notice of Contention, asserts that there is an additional reason why the judge's finding of agency on the part of Mr Young was correct. It is that there was at one time an admission in a pleading of the Developer that the Developer, 'through Rod Young" , had retained MSP to carry out the shoring, sheet piling and anchoring works.
28In its written submissions on the appeal QBE submitted that, even if any of the arguments of the Developer succeeded, it would still not be open to the Court to increase the amount for which QBE had been held liable, in the absence of a cross-appeal by Mrs Marcolongo. In the hearing of the appeal, QBE abandoned that submission, and accepted that it was open to this Court to increase the proportion of liability beyond that which the trial judge had found, if this Court concluded that that should have been the result.
Outcome
29I have concluded that:
- The judge was mistaken in finding that Mr Young was the agent of the Developer for the purposes of entry into the contract with MSP.
- The judge made no error concerning the agreement that the parties entered at the time that Mr Young ceased to be a party to the litigation.
- The judge was correct in holding that the requirement of s 177, that the developer did "do anything in relation to" its own land that removed the support provided by that land to Mrs Marcolongo's land, was satisfied.
- While the judge was mistaken concerning two of the causal links he identified between the breach of duty by the Developer and the damage sustained by Mrs Marcolongo's building, his overall conclusion of a causal link was correct.
- There is no occasion to alter the apportionment of damages from that which the judge ordered.
30For the purposes of deciding whether Mr Young was the agent of the Developer in entering the contract with MSP, both parties submitted that the judge was entitled to take into account certain items of post-contractual conduct. I have concluded that the parties are correct in so submitting.
Factual Background
The Development Consent and Construction Certificate
31The development at No. 5 was carried out pursuant to a Development Consent granted by the Land and Environment Court on 12 September 2001. Its conditions included:
"A3. Excavations and backfilling
- it is not clear whether the judge is saying that the entire sheet piling system was inappropriate and ineffective, or whether he is saying that the temporary props under the foundation were inappropriate and ineffective.
- it would not be necessary for Mrs Marcolongo to prove that the sheet piling system was inappropriate and ineffective to succeed in proving that that system had been adopted without sufficient care, and that its adoption caused damage to her.
236Mr Robertson accepts that s 5D(1)(a) Civil Liability Act is satisfied in the present case because "the choice to go with sheet piling was a necessary condition of the damage as it occurred" (AT 31). That concession is consistent with Woolworths Limited v Strong [2010] NSWCA 282 at [50] which held that application of s 5D(1) requires the court to consider the particular harm that the plaintiff in the proceedings has suffered. He submits, however, that it is not appropriate under s 5D(1)(b) to attribute liability to someone who merely puts in place the preconditions that enable another person's negligence to become effective.
237Mr Robertson, adopting as an approximation that the sheet piling system was installed about a metre from the boundary, submits that the cause of the damage to Mrs Marcolongo's building was defective installation of the temporary piles. He submits that installation of the temporary piles underneath Mrs Marcolongo's building:
"... wasn't a part of the system that was ever described or exposed to [the Developer]. [The Developer] was never asked to approve or otherwise on the evidence. ... As far as [the Developer] was concerned, the system was the sheet piling. .... The fact that MSP chose to use another mechanism which was ineffective is not something that can be in my submission attributed to them. In other words, unless they had knowledge that these temporary piles were going to be used and approved that, then there's no basis for the attribution of cause." (AT 32-33)
238Reaching a decision concerning that submission requires some examination of s 5D and its role in the law of negligence. In Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [11], [41] the High Court has made clear that a court's decision about causation by negligence must now be approached in accordance with s 5D.
239The law of negligence operates in a framework of assumptions about how one person in society should act towards another. Those assumptions are involved in the notion of taking reasonable care. The assumptions are incompletely articulated, and come to be understood more through ostensive definition than through explicit exposition. The assumptions are seen as having a sufficiently wide degree of acceptance to be applied to everyone in the society, and a sufficient degree of wide acceptance to be applied by everyone who is given the opportunity to think about and discuss them. Being applied to everyone in a society makes them a fit subject for being the law rather than a private or sectional standard. Being able to be applied by everyone who is given the opportunity to think about and discuss them makes the topic of whether there has been a failure to exercise reasonable care a topic fit to for a jury to apply, as usually occurred in the earlier days of the tort of negligence. The members of a jury might initially have been randomly chosen members of society, but the trial process itself, and the opportunity for discussion in the jury room, provided each juror with the occasion for reflection and discussion about the standard of conduct that was being applied.
240The question that arises under s 5D(1)(a) of whether a breach of duty is a necessary condition for a particular harm to a plaintiff that follows it in time is purely an objective factual inquiry, dependent on knowledge of how in fact one type of event brings about a different type of event.
241There are also two different types of normative evaluation involved in the application of s 5D. One of them arises in the inquiry under s 5D(2), of whether, in an exceptional case and where there has been negligence that cannot be established as a necessary condition of the occurrence of harm, that negligence should nonetheless be accepted as establishing factual causation. Section 5D(2) directs the court to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. The occasion for making that sort of evaluation does not arise in the present case. The other arises under s 5D(1)(b), of deciding "that it is appropriate" that the person who has failed to act with reasonable care should be held liable for the particular harm concerning which factual causation has been established.
242The Review of the Law of Negligence Final Report , September 2002 ( "the Ipp Report" ) that is the avowed source of the Civil Liability Act , recommended that the test for causation should include separate elements of factual causation and scope of liability (Recommendation 29, at [7.49]). At [7.42] the Report says:
" ... a finding that the negligent conduct was a necessary condition of the harm may, by itself, be sought to justify a conclusion that the defendant ought to be held liable for the consequences of the negligence. The point is not that imposition of liability may not be justified, but only that a finding that the negligence was a necessary condition of the harm is not, by itself, sufficient to support that conclusion, because there is an infinite number of necessary conditions of every event. For this reason, the Panel recommends a legislative statement to the effect that the issue of causation has two elements - factual causation and scope of liability - both of which need to be addressed."
243One of the ways in which the existence of an "infinite number of necessary conditions of every event" is manifested in the attribution of responsibility lies in separating out those necessary conditions that fail, at a general level, to meet a standard of acceptable behaviour by one member of society towards another from other necessary conditions that do not involve such a failure. Evaluation of any action for the purpose of attribution of responsibility recognises that the action occurs in the context or against a background of circumstances and actions that are in themselves neutral or normal for evaluative purposes. In attributing responsibility for a motor car collision, it may well be that the accident would not have happened if one of the drivers had not been invited to meet a friend, supposing that the accident happened en route to that meeting. While the friend's invitation is a factual cause of the accident, it is inappropriate to attribute responsibility to the friend for issuing the invitation. This is because inviting a friend to visit is the sort of thing that is itself part of the ordinary background of social action that is not in itself blameworthy. Suppose instead that the accident would not have happened if one of the drivers had not borrowed the car involved. Whether the owner's lending the car is itself blameworthy, and deserving of the imposition of liability for the accident, will depend on matters such as whether a defect that the owner should have known about was part of the physical cause of the accident, or whether there was no such defect and the accident would not have occurred without negligent driving by the other driver involved. It is the blameworthiness of the particular necessary condition for the accident that makes it appropriate to attribute responsibility to the person who performed that necessary condition. Conversely, if a person's action is a necessary condition of particular harm happening but is not itself blameworthy, that person's action is not seen, for the purposes of attribution of responsibility, as justifying the imposition of liability. That does not involve denying the causal role of the necessary condition, just saying that not all causes deserve the attribution of legal liability.
244This does not, however, provide an adequate explanation of the operation of s 5D(1)(b). That is because s 5D is concerned with providing for a test for when "negligence caused particular harm" . "Negligence" is defined in s 5 as meaning "failure to exercise reasonable care and skill" . The scope of s 5D is wider than the tort of negligence, because s 5A(1) provides that "This Part [Part 1A - Negligence] applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise." However, the notion of a failure to exercise reasonable care and skill, whether used in the law of tort or in the other contexts to which s 5A(1) refers, already has within it the notion that there has been a departure from proper standards. Section 5D(1)(b) implicitly assumes that there might be some situations in which a person has failed to exercise reasonable care, and that that failure to exercise reasonable care was a necessary condition of the occurrence of the harm, but even so it is appropriate for the scope of the negligent person's liability not to extend to the harm so caused.
245Deciding whether conduct has failed to meet the standard of reasonable care is an evaluation of the conduct, by reference to standards of how one member of society ought behave towards another. The normative element in that exercise involves applying to the particular alleged breach a standard of how, at a fairly high level of generality, people ought behave towards one another. The focus of s 5D(1) is different to that - it evaluates both the conduct itself and also the connection that there is between a failure to exercise reasonable care, and particular harm that a particular plaintiff suffers following that event.
246The Ipp Report's total explanation of its concept of scope of liability is at [7.43]-[7.50]. It is reproduced in the Schedule to this judgment. By reference to terminology that the common law used, it identifies some types of situation where it might not be appropriate to hold a defendant liable for the consequences of his failure to take reasonable care. The identified types are situations where:
(a) as a matter of common sense that people would say that the negligence was not a cause of the harm;
(b) the negligence is not the "real cause" or "effective cause" of the harm;
(c) another necessary condition "intervenes" between the defendant's conduct in the harm and "breaks the chain of causation". The example is given of a driver who negligently injures a pedestrian, who is further injured when the ambulance in which she is being taken to hospital is involved in a collision as a result of negligence on the part of the ambulance driver. In that situation, the first driver would not be held liable for the injury resulting from the second accident, notwithstanding that the first driver's negligence was a necessary condition of the harm suffered in the second accident.
(d) the damage is too remote - ie not a reasonably foreseeable consequence of the negligence.
247The common law used the first three of these concepts as ways of holding that something that was a necessary condition of the occurrence of harm was not "really" a cause of the harm. It then used the concept of remoteness of damage as a way, once a "real" cause had been found, of limiting the damages for which the person who had engaged in the action or inaction that was the "real" cause was held responsible. It was only by use of the concept of remoteness of damage that the common law explicitly recognised that it was limiting liability for the consequences of a wrongful action.
248Of particular relevance for this case, it did not always happen that identification of a later cause of the harm in question was enough to "break the chain of causation" between the harm and an earlier necessary condition of the harm. The common law has long ago abandoned the "last opportunity rule" as a test of causation.
249There was some recognition in the common law that the law was applying its own concept of causation, which was not the same as applied in some other fields of discourse. In National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 Windeyer J noted at 590 that:
"Sir Frederick Pollock long ago sounded a warning that 'the lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause'."
See further, Mason CJ's comments in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 509.
250Thus, the common law searched for "a cause" of a particular harm by the use of concepts like the first three identified. However, this search involved a covert application of evaluative standards, concerning when and why it was appropriate for a person to bear legal liability for his or her actions or inactions. The recommendation of the Ipp Committee that is now embodied in s 5D recognised the common law's implicit reliance on normative assessments in determining causation. The Ipp Committee's recommendation did not suggest that the conclusions at which the common law had arrived concerning when it was appropriate to hold a person responsible were wrong. Rather, its recommendation required that the covert application of evaluative standards become explicit.
251In Zanner v Zanner [2010] NSWCA 343 this Court held that the notion of common sense that the common law had applied in deciding causation could be used in carrying out the task under s 5D(1)(b): at [12] per Allsop P, and [79] per Tobias JA (Young JA agreeing with both).
252I respectfully agree. When a jury decided negligence cases under the common law, the question of causation was the province of the jury. The normative standards that were involved in deciding causation were ones that ordinary members of the community understood and could apply. The widely held understanding of ordinary people is often called "common sense" - sense that is common to everyone - and judges adopted and invoked this notion of "common sense" to explain to jurors the sort of connection between failure to exercise reasonable care, and subsequent harm to the plaintiff that warranted finding that the defendant was legally liable. Now negligence cases are decided by judges sitting alone, without the assistance of other fellow citizens to help them decide whether holding a defendant responsible for having acted negligently would accord with common standards of when people ought be held responsible. In this context a judge's decision about whether it is "appropriate", within the meaning of s 5D(1)(b), to hold a defendant liable for the consequences of his negligent act should still be decided by reference to the standards that the general mass of the community would understand and apply. As McHugh J said in Dovuro v Wilkins at [34]:
"If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community or, in cases of expertise, of the experts in that particular community. To hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute."
253While a judge has some feeling for this simply by being a member of the community, a judge also has available assistance from cases that decide when it is, and when it not "appropriate" to hold a defendant liable for the consequences of his negligence. Insofar as they are decisions about the facts of particular cases they do not operate as precedents, in the sense of cases that provide binding authority for subsequent cases. Rather, they fill the somewhat different role of ostensive definition (definition by showing), that the common law has long used previous cases to perform. Reading a variety of cases that have considered whether a defendant should be held liable for the consequences of his negligence enables one to come to an understanding of the standard by which that appropriateness is to be ascertained.
254The Ipp Committee's report recognises that whether it is appropriate to attribute to a negligent defendant responsibility for particular harm that results from that negligence depends to some extent on the class of relationship between the plaintiff and defendant. For example, suppose that the defendant is a medical practitioner and the plaintiff his patient who has sustained a rare complication after undergoing an operation that the plaintiff agreed to undergo only because the defendant failed to warn that that complication could arise from that operation. The relationship between plaintiff and defendant would be a relevant element in a conclusion about the appropriateness of attribution of liability. Alternatively, a conclusion about the appropriateness of attribution of liability can have as a relevant element that the defendant is a motor vehicle driver and the plaintiff a passenger in another vehicle. One can see that there are elements of personal reliance and trust in the relationship between medical practitioner and patient that are not exactly parallelled in the relationship between the motorist and passenger in another vehicle, and that can bear upon the community's commonly held ideas about when liability should be attributed.
255In Zanner the plaintiff was a woman who had been injured when her 11-year-old son accidentally drove a motor vehicle into her while she was standing in front of it. She had permitted him to drive the vehicle, and was aware of his lack of experience. It was argued that no responsibility should be attributed to the son, and that all responsibility fell on the mother. The court rejected that argument. The reasoning by which the argument was rejected illustrates the process involved in applying s 5D(1)(b). Allsop P said, at [12]:
"Injury to the mother was entirely foreseeable should negligence occur. The scope of the risk of harm protected by the duty and created by the breach included injury to the mother. The injury was not coincidental to the breach. It was the direct and immediate consequence of the negligence. The son in the car ran over his mother. The content of the duty and the attenuated standard of care were directed to the exercise of care to avoid injury to the mother in the very manner that occurred. There was no intervening act of a third party or of an abnormal event. The only other causal factor was the negligence of the person (the mother) to whom the duty was owed. There is no reason why the appropriate apportionment of respective responsibility is not best allocated through contributory negligence. Common sense would attribute the mother's injury to the negligence of her son, as well as to her own negligence in putting herself in that position."
256Tobias JA's reasoning, at [80]-[82] was:
"In my view the respondent's submission that the issue of policy that arises out of a case such as the present concerns the question of responsibility for the conduct and control of motor vehicles should be accepted. It was submitted that it would be a rare case indeed where a motor vehicle case attracted some other policy consideration, once factual causation was established, which would justify a denial of liability on the grounds of causation. Such a rare case may be one where the relevant harm is only remotely connected to the defendant's conduct.
The present case involves two necessary conditions that contributed to the occurrence of the respondent's injuries. The first was the first appellant's conduct in his control of the vehicle; the second was the respondent's conduct in permitting the first appellant to drive the vehicle and then standing in front of it. It is the latter factors that give rise to the respondent's contributory negligence. Be that as it may, it does not follow that because the respondent contributed to her injuries in the manner referred to, as a matter of policy the first appellant should not be held to account with respect to his own negligence. After all the most proximate cause of those injuries was his negligence.
As has already been observed, it cannot be said that the first appellant was not fully aware, notwithstanding his age, of the dangers associated with driving a motor vehicle and, in particular, of the necessity to ensure, given his knowledge that the respondent was standing in front of the vehicle, that his foot did not slip from the brake to the accelerator. In these circumstances it seems to me that it is appropriate for the scope of the first appellant's liability to extend to the harm to the respondent directly caused by his conduct and that, subject to the question of contributory negligence, there was no policy reason why responsibility for that harm should not be imposed upon him."
257Day v Rogers [2011] NSWCA 124 provides an example of the application of s 5D(1)(b) to a situation in which the harm suffered by the plaintiff is a consequence of the interaction of the defendant's negligence with several other causal factors. The plaintiff had briefed the defendant to act for him as a barrister concerning a claim under the Property (Relationships) Act 1984 . When that case came on the hearing, the affidavits filed on behalf of the plaintiff were read. The opposite party in the litigation then made an application under Uniform Civil Procedure Rule 29.9 for the case to be dismissed, basically on the ground that the affidavits were so defective that the case was bound to fail. The defendant argued that application. The judge then dismissed the case, but because it was not a dismissal on the merits it was possible for the plaintiff to start again. He sued to recover the costs that were wasted because of the proceedings being dismissed and needing to be recommenced. The failure to exercise reasonable care alleged and found against the defendant was in his preparation of affidavits for use in the proceedings.
258The plaintiff succeeded in his negligence action in the court below, but the defendant overturned it in this Court, because this Court held that the preparation of the affidavits fell within the scope of the advocate's immunity from suit. However this Court also considered, and rejected, an argument that negligence in preparation of the affidavits had not caused the waste of the costs, because of the existence of intervening causes. One such intervening cause was the defendant's own conduct of the application under UCPR 29.9, concerning which he clearly had advocate's immunity, and concerning which he had not been sued. His conduct of that application had some fairly basic deficiencies, identified at [139]. Further, a majority of this court (Allsop P at [2], Sackville AJA at [151]) held that the application should not have succeeded.
259The defendant accepted that his negligence was a necessary condition of the occurrence of the harm to the plaintiff, but disputed that the scope of his liability should extend to the wasted costs ([134]). Concerning the scope of liability, Giles JA (Allsop P and Sackville AJA agreeing) said at [145]-[147]:
"It must be asked whether it is "appropriate" for the scope of the appellant's liability to extend to the wasted costs consequent on the dismissal (s 5D(1)(b)), with consideration of whether and why responsibility for the harm should be imposed on the appellant (s 5D(4)). The starting-point is that the appellant's negligence brought the occasion for [the opposite party's] application pursuant to r 29.9.
It is not necessary ... to attempt to forecast what might have occurred if the appellant had acted otherwise than he did in his conduct of the proceedings at the hearing. Speculation on whether the dismissal might have been averted if the appellant had acted otherwise than he did in opposing the application is not a sound basis for finding a break in causation, and does not in my view materially weigh against imposing responsibility on him. His negligence brought the situation about, and failure so to act as to avert the dismissal, whether or not negligence in itself, should not work to his advantage.
As to error on the part of [the District Court judge], a barrister or solicitor should prepare and conduct proceedings so as to guard against the judge falling into error. Even if [the judge] was persuaded to an over-strict view of the presentation of both parties' asset positions, by his negligence the appellant enabled [counsel for the opposite party] to exercise the persuasion. The appellant submitted that it was not appropriate that he should be found to have caused the respondent's harm, if the judge had contributed to the harm but it was not open to the appellant to claim for contribution or reduction for proportionate liability. That is no reason to relieve the appellant from his responsibility for the harm."
260I have deliberately set these passages out in full because coming to an understanding of an abstract concept like "appropriate for the scope of the negligent person's liability to extend to the harm so caused" is assisted not only by considerations of history and policy, but also by concrete examples of how the concept is applied.
261In my view, it is appropriate for the scope of the Developer's liability to extend to the harm suffered by Mrs Marcolongo's building. There is no finding by the judge that, if there had been no negligence in installation of the temporary piles, the damage would not have occurred. We are not asked to make such a finding. However, I put the finding of appropriateness on a wider basis than that. The Developer made a radical departure from its own commissioned engineering design for a deep excavation in an urban area that was to go within a metre or so of a neighbouring building. It departed deliberately from a legal requirement that attached to its having permission to carry out the development at all. It did so without adequate inquiry, and for no better reason than to save itself time and money. That is conduct that involves a very serious departure from the standards that a landowner in twenty-first century Australia is entitled to expect from his or her neighbour.
262Though those are matters that are relevant to breach, characterisation of the conduct that constitutes the breach is relevant to the decision about attribution of responsibility.
263Further, it was readily forseeable that creating an excavation could cause damage to neighbouring buildings if it was not properly retained. The neighbours had a particular vulnerability to inadequate carrying out of the excavation. They had little scope for taking action of their own to prevent it occurring - objection to the development application, complaint to the Council in the course of construction, or in extreme cases seeking an injunction against an anticipated tort. The point of imposing the duty of care on the Developer is to protect against precisely the sort of damage that Mrs Marcolongo sustained. While there was a contributing cause of the damage, namely the negligent installation of the temporary piles, the installation of the piles only occurred because it was an intergral part of the sheet piling sytem. I recognise that that contributing cause operated after the Developer decided to adopt the sheet piling system, but I do not accept that members of the community would regard that as a reason why the Developer should not be held liable. Taking all these matters together, it is in accord with common sense that the Developer be held liable.
264Questions of the relative responsibility of the Developer and MSP are more appropriately resolved through apportionment than through excusing the Developer from liability altogether.
Apportionment
265When I have found (at [233]-[235]) that the judge was mistaken in finding that the matters that he identified in [201(b)] and [201(c)] were causes of the damage, his reasoning process concerning apportionment has proceeded on a flawed basis. Thus it is necessary for this Court to assess the apportionment for itself.
266An apportionment between a plaintiff and a defendant of their respective shares in the responsibility for damage was held, in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494, as involving:
"... a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ..."
267Those factors are also relevant to the apportionment of responsibility between defendants for the purpose of contribution between tortfeasors: J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 at [94]. In particular, they apply to apportionment under s 109ZJ EPA Act .
268The culpability of the Developer was, for the reasons I have earlier given, of a very high order. MSP's manner of constructing the temporary piers was of greater relative importance in causing the damage. I would apportion the damages in the same way the trial judge apportioned them.
Orders and Costs
269The judge ordered both defendants to pay the plaintiff's costs of the proceedings, and ordered how that liability should ultimately fall between the two defendants. That apportionment reflected the 75:25 split that his Honour had found was appropriate for liability, so far as the costs of the plaintiff in the period after 3 February 2005 were concerned, and 50:50 for the period prior to 3 February 2005. The parties requested the opportunity to make further submissions on costs if the appeal were to be upheld in any respect, in particular concerning the appropriateness of making a Bullock order.
270I propose that the appeal be dismissed, with costs. In that circumstance, there does not appear to be any need for the parties to make any further submissions concerning costs. However, if there are any matters of which the Court is not presently aware that might impact upon costs, the parties have the opportunity under UCPR 36.16 to deal with that situation by filing a Notice of Motion within 14 days.
271The orders I propose are:
(1) Appeal dismissed.
(2) Appellant to pay costs of the Respondents of the appeal.