Medlin v State Government Insurance Commission [1995] HCA 5;

Medlin v State Government Insurance Commission [1995] HCA 5; - HCA 1995 case summary — Zoe

[21]

6. For the purposes of the law of negligence, the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience ((9) See Fitzgerald v. Penn [1954] HCA 74; (1954) 91 CLR 268 at 277-278; March v. Stramare (E and M.H.) Pty. Ltd. [1991] HCA 12; (1991) 171 CLR 506 at 515, 522-523; Bennett v. Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 412-413, 418-419, 428.). And that remains so in a case such as the present where the question of the existence of the requisite causal connection is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage. In such a case, the "but for" test, while retaining an important role as a negative criterion which will commonly (but not alwaysalwaysa) exclude causation exclude causation if not satisfied, is inadequate as a comprehensive positive test ((10) See, e.g., March v. Stramare (E and M.H.) Pty. Ltd. (1991) 171 CLR at 515-519, 522-524). If, in such a case, it can be seen that the necessary causal connection would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision. It will be seen that, on the plaintiff's evidence, the present was such a case.

[27]

10. The above express primary findings of fact made by the learned trial judge did not, however, suffice to provide an answer to the question whether, for relevant purposes, the premature termination of the plaintiff's University appointment had been caused by the injuries which the plaintiff had sustained in the relevant accident. Clearly enough, the chronic and sometimes intense pain, the nightly disturbance of sleep and the associated loss of "intellectual energy" which his Honour found resulted from the plaintiff's injuries had caused some diminution in his earning capacity. The plaintiff's evidence, if accepted, supported a conclusion that, accepting the findings of the trial judge, those effects of his injuries were a causative influence in the premature termination of his employment in two distinct ways. First, they were a contributing cause of his decision to retire in that their effect was to decrease his ability to discharge the duties of his appointment at what he saw as an acceptable standard. That is to say, they were a contributing cause of what his Honour found to have been a subsidiary "reason for the plaintiff's early retirement". Secondly, and more importantly for present purposes, they were also a contributing cause of what his Honour found to have been the "pre-eminent" reason why the plaintiff decided to retire early", namely, a desire "to devote as much time as possible to research and creative philosophy untroubled by the requirements of University life and in particular the administration and teaching duties required of him". As we read the whole of the plaintiff's evidence, including a letter of 26 May 1987 upon which both the trial judge and the members of the Full Court placed particular reliance, the plaintiff's case was to the effect that the pain, fatigue and loss of intellectual energy caused by the accident had led to a situation where the discharge of his administrative and teaching duties absorbed much more of his time and capacity than would otherwise have been the case and precluded him from doing the research and creative work which he would otherwise have been able to do: as he wrote in that letter, teaching "uses up all the energy I have available. Non-teaching periods of the year are mostly consumed by teaching - either preparation or recovery." That being so, the trial judge's findings that the "pre-eminent reason why the plaintiff decided to retire early was to be able to devote as much time as possible to research and creative philosophy" and that a subsidiary reason for early retirement was that the plaintiff believed he should retire for the reason that "he was not performing at the level he thought desirable" did not suffice to answer any question of causation in the present case. Rather, those findings gave rise to the question whether, taking account of any part played by the plaintiff's injuries as a contributing cause of each of those reasons, it should be concluded that the plaintiff's premature retirement was, for relevant purposes, caused by the accident in the sense that it was a product of the loss of his earning capacity resulting from the injuries which he had received in it. His Honour did not expressly deal with that question or with the combined significance of those different causative effects.

[31]

14. The learned trial judge did not fall into the error of treating his finding that the plaintiff could have continued in his University appointment as automatically defeating his claim for damages for loss of earning capacity. Instead, his Honour embarked upon the task of "determining whether the plaintiff should have remained in his employment". His Honour expressed the view that, in determining that question, "the proper course is to apply a test that asks whether, in the light of the medical condition of the plaintiff and the fact that his post remained available to him and the other factors affecting him, the plaintiff's decision to retire early was reasonable". One can point to some support in the decided cases for his Honour's approach in that regardaWith due regard ((12) Glavonjic v. Foster [1979] VicRp 52; (1979) VR 536 at 539-540; Karabotsos v. Plastex Industries Pty. Ltd. [1981] VicRp 65; (1981) VR 675 at 677-679, 683; Hisgrove v. Hoffman (1981) 29 SASR 1 at 8.). With due respect, however, the question whether a sixty year old man who has sustained permanently incapacitating injuries of the kind sustained by the plaintiff "should" continue in his employment or is "acting reasonably" in accepting premature retirement was not the appropriate one. As has been mentioned, the evidence established and the trial judge found, that the injuries sustained by the plaintiff caused him chronic and sometimes intense pain and that the combined effect of the pain and consequent loss of sleep was to reduce the plaintiff's intellectual energy to an extent which prevented him from discharging the duties of his office to the standards which he considered appropriate. As has also been mentioned, the plaintiff's evidence supported a finding that the effects of the accident were that his routine administrative and teaching work used up all his energy with the consequence that he was incapable of doing the research and creative work which he desired to carry out and which, one would think, would be and should be expected of the holder of the Chair of Philosophy in a major university. In these circumstances, the relevant question was not whether the plaintiff "should" have continued in his University post or whether his decision to retire was not "reasonable" but whether, in the context of what was reasonable between the plaintiff and the defendant in determining the defendant's liability in damages, the premature termination of the plaintiff's employment was the product of the plaintiff's loss of earning capacity notwithstanding that it was brought about by his own decision to accept voluntary retirement.

[32]

15. Counsel for the plaintiff further submitted that, even if the conclusion had been properly reached that the premature termination of the plaintiff's University appointment had not been relevantly caused by the accident, that was not necessarily the end of the plaintiff's claim for damages for loss of earning capacity in relation to the four and a half year period until the plaintiff reached sixty-five years. There is obvious force in that submission. A plaintiff is not precluded from recovering damages for loss of earning capacity merely by reason of the fact that he or she voluntarily left employment which was unsuitable or in which he or she was unhappy. The continued availability of such employment will, of course, be relevant to the question of the existence and extent of any loss of earning capacity and a finding that a plaintiff's termination of employment was not the product of an accident-caused loss of earning capacity will necessarily preclude the calculation of damages on the basis that it was. Such a finding does not, however, mean that damages cannot be recovered for loss of earning capacity in relation to the period subsequent to the termination of that employment if there is in fact an accident-caused loss of earning capacity which has been or will be productive of financial loss during that subsequent period. Counsel for the plaintiff also submitted that both the learned trial judge and the Full Court had failed to deal at all with the plaintiff's claim for loss of earning capacity in so far as it related to the period after the date on which the plaintiff would have retired in any event on reaching the age of sixty-five years. Not all the material in evidence has been reproduced for the purposes of the appeal to this Court. The material before us does, however, indicate an absence of evidence addressed to the question of what, if any, financial loss had been or would be sustained by the plaintiff after retirement. As we have indicated, the learned trial judge apparently saw the plaintiff's claim to loss of earning capacity as being confined to financial loss sustained by reason of the premature termination of his University appointment. The Court was, however, informed by counsel for the plaintiff, without dissent on the part of counsel for the respondent, that the claim for damages for loss of earning capacity had never in fact been so confined.

At a glance

Court

Decision date

Before

Source

Judgment (82 paragraphs)

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180 (1995) Aust Torts Reports 81-322 (16 February 1995)

Parties

Cases Cited (14)