Causation
87The Civil Liability Act, s 5D(1) provides:
"5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)."
88His Honour's consideration of causation involved a reference, at [63], to s 5D and the following statement (taken from counsel's submissions at trial):
"The relevant test under s 5D of the CL Act has been enunciated by the High Court in Adeels Palace Pty Ltd v Moubarak ... The test is not the 'matter of common sense' test of March v E and MH Stramare Pty Ltd, but s 5D(1) of the CLA which 'treats factual causation and scope of liability as separate and distinct issues'. The two stage test under Section 5D(1) is:
a. The negligence was a necessary condition of the occurrence of the harm (factual causation), in the sense that a specific reasonable action of the school (or the teacher) would have prevented [the respondent] from subsequently being assaulted by T; and
b. It is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)."
89Having considered the factors relevant to breach, his Honour concluded, at [75], that the appellant had been negligent. No other consideration was given to the question of causation, except for his Honour's finding, at [70], that Ms Edgar could have separated the desks had she been aware of the circumstances of the first incident. His Honour's failure to make findings or to engage in any reasoning as to causation or to apply the provisions of s 5D are the subject of ground 4 of the notice of appeal.
90The breach of duty in the present case was one of omission. In order to establish causation, the respondent had to demonstrate that the school's negligence in failing to provide Ms Edgar with the full details of the earlier assault, including the minor provocation that had caused it, was a necessary condition of the occurrence of the harm: s 5D(1)(a). In other words, he had to prove factual causation. Notwithstanding the almost universal criticism of "but for" causation in cases of omission: see March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506; C Sappideen, P Vines, Fleming's The Law of Torts, 10th ed (2011) the statute imposes that test as the first gateway to proof of causation.
91In Adeels Palace Pty Ltd v Moubarak, the High Court examined the operation of s 5D(1)(a) in the context of an omission to provide security personnel at the entry to nightclub premises. A patron who had left the nightclub returned with a gun and shot another patron during the course of a fight. The Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) pointed out, at [55], that unlike the position at common law, where "but for" causation was not always a sufficient test of causation, the statutory "but for" test is a necessary test, save for the exceptional case to which s 5D(2) applies. It was not suggested in the present case that this was an exceptional case in respect of which s 5D(2) should be called in aid.
92The Court, at [45], articulated the statutory test in s 5D(1)(b) in terms: "but for the negligent ... omission would the harm have occurred?" The Court held that the "but for" test of causation was not made out. In the Court's opinion, the evidence did not establish that the presence of security personnel would have deterred the re-entry of the gunman, or could have prevented re-entry. It was not sufficient that the engagement of additional security might have deterred or even prevented the gunman entering the premises and/or shooting patrons in the night club.
93Section 5D(1)(a) was also considered in Strong v Woolworths Ltd [2012] HCA 5. The plurality stated, at [20]:
"Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm. This is pertinent to the appellant's attack on the Court of Appeal's reasons, which is directed to par 48 of the judgment:
'Now, apart from the 'exceptional case' that section 5D(2) recognises, section 5D(1) sets out what must be established to conclude that negligence caused particular harm. That emerges from the words 'comprises the following elements' in the chapeau to section 5D(1). 'Material contribution', and notions of increase in risk, have no role to play in section 5D(1). It well may be that many actions or omissions that the common law would have recognised as making a material contribution to the harm that a plaintiff suffered will fall within section 5D(1), but that does not alter the fact that the concepts of material contribution and increase in risk have no role to play in deciding whether section 5D(1) is satisfied in any particular case.'" (emphasis in original)
94Strong v Woolworths was a "slipping case". Mrs Strong had slipped in an area under the control of Woolworths, when she placed her crutch either on a chip or on some grease left by a chip on the floor. In that context, the plurality stated, at [32]:
"The appellant was required to prove on the balance of probabilities that Woolworths' negligence was a necessary condition of her harm. Woolworths' negligence lay in its failure to employ a system for the periodic inspection and cleaning of the sidewalk sales area. Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W."
95In this case, in order to prove causation, the respondent was required to establish what Ms Edgar should have done that would have prevented the harm to the respondent. In other words, the question of factual causation under s 5D(1)(a) involved the determination of the probable course of events had Ms Edgar been informed of T's propensity to a violent response if minimally provoked. The respondent, as plaintiff, bore the onus of establishing this probable course of events: see s 5D(5). To this end, the respondent filed a notice of contention in which he contended:
"His Honour having found that Ms Edgar ought properly been made aware of [T's] likelihood of losing his temper and assaulting other students, then in circumstances where an altercation had occurred, his Honour should have found that the appellant should have, and would have, taken the following steps to ensure the safety of the respondent:
(a) Leaving the classroom to check whether [T] was in the near vicinity; in which case, she would have been able to observe [T] and diffuse the situation.
(b) Escorting the respondent to a position of safety.
(c) Having heard raised voices and swearing in the classroom, to have separated the students, counselled [T] to ensure that his anger and aggression had fully abated and posed no risk to fellow students including the respondent (particularly so given his behavioural history).
(d) Enquire of the respondent whether he had any fears for his safety and thereafter taken the steps set out above.
(e) Further, that Ms Edgar should have discerned that the respondent remaining present in the near vicinity of the classroom, after class had been dismissed, was due to his apprehension and fear of [T] and thereafter had taken the steps set out in (a)-(d) above."
96As the concern at this point is with factual causation, the respondent was required to establish some underpinning factual circumstance that either of itself, or by inferential reasoning, enabled the court to find that "but for" the negligent omission, the harm to the respondent would not have happened. I have referred to the difficulty of establishing "but for" causation in the case of negligent omissions and as Adeels Palace Pty Ltd v Moubarak amply illustrated, the presentation of a range of possibilities is insufficient. In the present case, Ms Edgar was not only the teacher whose specific conduct was under scrutiny, she was an experienced teacher whose responsibilities included the position of head of welfare. She was also familiar with T and his general behaviour. In that regard, T was generally regarded as a student who applied himself to his work, was well behaved and had demonstrated himself to be compliant with directions and instructions. Ms Edgar was thus the very person who was likely to know what steps were likely to be effective in dealing with T's classroom conduct on the day in question.
97The respondent accepted that if all that had occurred in the classroom between him and T was a minor disturbance, there would be no causal link between the school's omission to inform Ms Edgar sufficiently of the circumstances of the assault and the serious attack that occurred outside the classroom. He contended, however, that there had been an angry exchange between the boys, that included swearing, which Ms Edgar heard. He submitted that in those circumstances, Ms Edgar would have realised that T had once again become very angry. Had she known that T could be "set off" and that his reactions could be out of proportion to the incident that was causing him to get angry, she should and would have done something about the situation that was occurring.
98The question of causation has to be determined having regard to the factual circumstances in which the duty of care was owed and breached. That included the overall assessment the school had made of T's behaviour and personality, Ms Edgar's familiarity with T and the particular assessment she made of the disturbance that had occurred in the classroom. Having dealt with the immediate problem as she perceived it, she made a professional assessment that the incident was over and that there were no ongoing anger management issues with T.
99The factual circumstances also included Ms Brookton's assessment that T had been an exemplary student up to the time of the first incident, that he had shown remorse for his behaviour on that occasion and had been responsive to the sanctions imposed and that "a person like this is not going to do it again". That assessment was carefully and genuinely made having regard to her experience, her knowledge of T and his personality and included an interview with T and, it appears, his parents, following his return to school.
100In addition, the circumstances occurring in the classroom just before the incident were relevant and critical, although those circumstances were to be assessed in the context of the general assessment of T's behaviour, to which I have referred. I have expressed the opinion that the evidence did not support a finding that Ms Edgar heard swearing. However, there was a disturbance which was sufficient to cause Ms Edgar to go over to the students to investigate what was happening.
101The respondent's oral submissions were substantially directed to ground (c) in the notice of contention. He submitted that Ms Edgar's evidence as to the intervention strategies she would have implemented in different scenarios provided a sufficient factual basis to satisfy the "but for" test of causation. Those strategies involved separating the students or accompanying a student, who was in fear of another, to a place of safety.
102Even if the classroom incident was sufficiently serious such that Ms Edgar should have separated T and the respondent, a strategy which she said was basic and usually effective, the evidence does not support a conclusion that "but for" the omission to take that precaution, the assault would not have occurred. Ms Edgar had, as I have said, implemented a measure that had appeared to be effective. In her observation, nothing further had occurred between the two students and nothing was brought to her attention at the end of class to raise any concern.
103It is relevant to this consideration that the incident occurred at least 10 minutes before the end of class so that there was a reasonable time for T to calm down and, perhaps more relevantly, there was a reasonable period of time for Ms Edgar to observe any continuing problem. She saw no such evidence of T needing to calm down or of any continuing problem with him.
104Indeed, the respondent said that after the incident occurred, he separated himself from T by moving his chair and table back away from T and that, until the bell went 10 minutes later, he sat there and did his work. The respondent did not say that there was any continuing problem with T during this period. Hence, separating the desks of T and the respondent did not prevent the assault that later occurred.
105It was also submitted that had Ms Edgar known the full extent of the first incident, she should have taken a further step and spoken to T so as to be satisfied that he had calmed down. Even if that was a step Ms Edgar should have taken, it cannot be assumed that had she spoken to T, she would have concluded that he was not calm and taken some further step such as counselling T or escorting the respondent from the classroom. Ms Edgar had interacted with T, observed mild annoyance only and considered the steps she had taken were adequate. There was no evidence to indicate that T gave any outward indications that he remained seriously angry and stirred up.
106In assessing the causal link, based on the breach that occurred, the communication that ought to have been made to teachers, including Ms Edgar, could and indeed should have included, not only the information that T had reacted violently on slight provocation, but that he had been remorseful and an assessment had been made that it was unlikely he would do it again.
107The respondent placed some emphasis upon the fact that in his statement, T had said that he wanted time to be away from other people and to cool down. It was suggested that had Ms Edgar separated the boys or taken some other action to defuse the situation, T would have had time to cool down. This was a possibility. Even if Ms Edgar had gone over to T and counselled him, the most that can be said is that the outcome might have been different. T might have calmed down and walked away. He may have assured Ms Edgar that he was not angry, when in fact he was quietly seething and intent on doing harm to the respondent. However, as was explained by the High Court in Adeels Palace v Moubarak, the suggestion of a possible outcome should some alternate course have been taken does not satisfy the "but for" test.
108It was also submitted that had Ms Edgar known the details of the first incident, she would have perceived the respondent was afraid and either checked to see that T was not lingering in wait for the respondent: notice of contention ground (a), or escorted the respondent from the classroom: notice of contention ground (b).
109The trial judge found that the respondent had lingered in the classroom because he was afraid of T, but that he did not convey his fear to Ms Edgar. However, Ms Edgar was not asked what she might have understood or perceived in the respondent staying back had she been aware that T had previously acted violently on slight provocation. Nor was she asked what she would have done, given the incident between T and the respondent in the classroom, had she been aware of the full details of the first incident. Not only was Ms Edgar not asked about this, there was another teacher in the hallway who did not observe anything untoward.
110Further, the contention in ground (b) that Ms Edgar should have escorted the respondent to a position of safety was raised in general terms and itself raised a number of questions that are not dealt with in the evidence. No indication was given as to where a "position of safety" might be. Was it the front office? Was it the playground? Was the respondent required to be kept away from his fellow students in case T should come along? If so, for how long? Was T to be kept away from other students in circumstances where he had not transgressed school rules, other than for the classroom incident that Ms Edgar had dealt with? Whilst these questions are posed rhetorically, they demonstrate that this contention amounts to no more than a series of possibilities, which if implemented might have adverted the accident. "But for" causation requires the Court to be satisfied that some such step, if taken, would, on the balance of probabilities, have adverted the harm suffered by the respondent.
111The notice of contention, grounds (d) and (e) raised similar matters. The respondent contended that Ms Edgar should have enquired whether the respondent was afraid, or should have perceived that he was afraid, and taken one or other of the steps referred to in grounds (a), (b), or (c). Given that I consider that the respondent has not made out his case on causation in respect of those paragraphs, these contentions must also fail.
112In summary, therefore, it was necessary for the respondent to establish, on the assumption that she had been given sufficient information as to the first incident, what the likely outcome would have been had Ms Edgar taken the steps that the respondent contended she should and would have taken. Although a case, where there is no actual or direct evidence of the necessary causative connection between breach and harm, may be difficult to prove, the court is not precluded from drawing appropriate inferences if the underlying evidentiary base for doing so is established.
113In the absence of any other evidence on causation, Ms Edgar was the appropriate person to give evidence as to the hypothetical circumstance with which the respondent's case was required to deal. It was imperative for the respondent to ascertain from Ms Edgar what she should and would have done, given that the appellant had failed to take the precaution which constituted the appellant's breach of duty. As I indicated, Ms Edgar had been forthcoming in her cross-examination as to what information should have been provided to her. It was her evidence that essentially grounded my finding as to breach. As an experienced teacher, she would know the likely outcome of the steps that the respondent contended should have been taken. However, she was not asked and the Court is not entitled to speculate as to what her evidence may have been. I would only add that Ms Brookton was not relevantly cross-examined on the essential matters going to causation for which the respondent contended.
114It follows, in my opinion, that as the respondent did not establish factual causation, the appeal should be allowed and verdict entered for the appellant. I would only add for completeness that had factual causation been established, I consider that this is a case where it was appropriate for the scope of the appellant's liability to extend to the harm so caused within the meaning of s 5D(1)(b).
115The orders I propose are as follows:
(1) Appeal allowed;
(2) Set aside the orders of the District Court and in lieu thereof order;
(a)judgment for the defendant on the plaintiff's statement of claim;
(b)the plaintiff to pay the defendant's costs;
(3) The respondent to pay the costs of the appellant on the appeal.
116PRESTON CJ of LEC: I agree with Beazley JA.