But for the Civil Liability Act…

The Honourable Dean Wells was Attorney General of Queensland between 1989 and 1995, and is currently in practice at the Queensland Bar. The Honourable Rod Welford was Attorney General of Queensland between 2001 and 2005, and in 2003 introduced into the Queensland Parliament the Bill which was enacted as the Civil Liability Act 2003 (Qld). Hearsay thanks them for this contribution apropos of the provision of such Act pertaining to proof of causation in breach of duty of care causes of action.

But for a seminar supported by the Bar Association we would not have thought to write this note. In September last year Professor Stapleton gave a presentation entitled “Unnecessary and Insufficient Factual Causes”,[1] in which she examined the jurisprudence underlying the role of causation in tort law. The commentator at the seminar was Pat Keane KC, then very recently retired from a distinguished term on the High Court Bench.

Professor Stapleton’s discussion focussed on the traditional role of necessary and sufficient conditions in tort law. Drawing examples from many jurisdictions, she advanced the thesis that a large number of cases in modern tort law could not really be explained in terms of the “but for” test of causation. Although the main thrust of her argument was of universal application, and her examples were international, she did mention one specifically Queensland matter: in particular she suggested that Queensland’s Civil Liability Act[2]opened the door to finding liability in circumstances in which the “but for” test would not permit it to be found.

This note is about only the small part of Professor Stapleton’s thesis that related to the Civil Liability Act.  

The Minister’s Second Reading Speech introducing the Bill for the Act, made on 11 March 2003, did not address whether the Parliament intended to any extent do away with the “but for” test. It did note that the Bill was not intended to create any new cause of action, and that it was not meant to be a codification of the law. The authors of this note are very conscious of the fact that in the absence of an explicit statement relating to the “but for” test, the only useful information as to the intention of the legislature is obtained by judicial statutory interpretation. So we are not purporting to give evidence on what the parliament intended.

What we can do is to draw attention to some propositions of legal philosophy that appealed to us at the time and would justify the prescriptions in the Act in question. In summary, we suggest that the jurisprudence that would justify the legislature’s language in the Act is entirely consistent with a world in which the courts continue to apply a necessary and sufficient test. Indeed we suggest that there is nothing in the Act with which Hart and Honore would have a problem.[3]

For ease of reference, we set out section 11 of the Act so far as is relevant to this discussion:

(1) A decision that a breach of duty caused particular harm comprises the following elements—

(a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation);

(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).

(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which cannot be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.

Rather obviously the Act grants the courts a very wide discretion. Tort law is an area in which a sensible legislature would want to allow courts the flexibility to have regard to all of the particular circumstances of a case. We note however, that this wide discretion was not given in a vacuum: the provision specifically refers to the retention of “established principles”. The legislature thus accorded the courts that wide discretion in circumstances in which the same test of causation had the place it did under common law.

Deploying the concept of “responsibility for the harm”, the Act allows that a person, whose contribution to the harm in question is not of itself necessary or sufficient to cause the harm, may be held liable if their conduct nevertheless contributed to the cause of the harm (to an extent that the court considers such conduct entails “responsibility”). When seen in its full legal context, this does not do away with the necessary and sufficient test: it makes it possible for the courts, if they choose to do so in a particular case, to refocus it. Reading the legislative provision together with the common law at the time, if one looks for the philosophical position a lawgiver would have to hold to prescribe it, it can be seen to be a provision based on the jurisprudence that a court should be able to hold a person liable in tort if their act was part of a set of conditions which, taken as a whole, were necessary and sufficient to cause that civil wrong.

The Queensland Parliament has often used such a device. For example, in the party provisions of sections 7 and 8 of the Criminal Code. The guilt of a person who is a party to a crime does not depend on whether his or her contribution was independently sufficient to ensure the commission of the crime. Culpability is established by their participation, with others, in a set of actions which did in fact culminate in the commission of a crime. Whether their participation was effective or not is not the question. The question under the Code is whether a crime was committed, and if so whether the accused was a party. A legal philosopher might justify such a provision in the Code by noting that what the accused is alleged to have done was a malum in se.

The jurisprudence that would explain section 11(2) of the Civil Liability Act is, we suggest, that it should be open to a court to find liability if someone has done something that made them a party to the commission of tortious harm. As we noted above, Pat Keane KC was the commentator on Professor Stapleton’s paper. He has made the point that historically responsibility for causing harm in tort law was resolved as a question for the jury. To use his phrase, there was thus always a moral squint necessarily involved in the determination of this question. He also noted that nothing in the legislation suggested an intention to alter the nature of the question.

The public policy that would justify treating a party to a tort as a tortfeasor is simply a public policy to discourage the infliction of public harm. Which, after all, is the core business of any legislature. A legal philosopher might argue that the legislature was extending the concept of “malum in se” by analogy from the criminal sphere to the sphere of civil wrongs.

The point is that the provision provides the courts with the discretion to find that even when the actions of a defendant are not of themselves a necessary or primary causal trigger for the resulting harm, the actions may nevertheless give rise to a level of culpability that constitutes sufficient grounds for holding the defendant accountable for the harm. The application of this principle is most evident in the context of two or more defendants contributing to the resulting harm.

However, it is not unreasonable to expect that it could apply equally to a single participant in the civil wrong. The Act makes it clear that liability can be found if, for example, the act was performed in circumstances where the defendant’s action was likely to have consequences, which would not have occurred in the absence of those circumstances. The thinking here has obvious analogies to the jurisprudence that courts rely upon in “egg shell skull” cases. This, we respectfully suggest, can also be explained as viewing the act in question in the way we suggest above: as part of a set of conditions which, taken as a whole, were necessary and sufficient to cause that civil wrong.  

Accordingly, we submit that the underlying jurisprudence of the Civil Liability Act is not such as to set aside or overturn the precedents based on the existing “necessary and sufficient” test in Queensland law. It simply expands its ambit of application. Thus, for example, if a number of persons recklessly or negligently pursue a course of action that is apt to cause harm, or is apt to contribute to causing harm, to another person, then to ask whether the actions of a particular agent alone were both necessary and sufficient to cause that harm, is to ask only one of the questions permitted by the Act. The other question is whether the action of that agent was part of a set of conditions which were, collectively, necessary and sufficient to cause the harm.

[1] Jane Stapleton KC (Hon) FBA, Life Fellow, Christ’s College Cambridge, Hon Prof. U Sydney Law School: her seminar “Unnecessary and Insufficient Factual Causes” was held in the Banco Court on 14 September 2023.

[2] Civil Liability Act (Qld) 2003.

[3] Hart and Honore, Causation in the Law, Oxford University Press 1959.