Manning, Katie --- "Helicopters or horses: the same test for all!" [2017] PrecedentAULA 35; (2017) 140 Precedent 39

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HELICOPTERS OR HORSES – THE SAME TEST FOR ALL!

By Katie Manning

In cases involving civil liability, practitioners should be acutely aware that the onus lies with the plaintiff not only to prove that the defendant was negligent but also that, on the balance of probabilities, the most likely possibility caused the plaintiff loss or damage. To obtain this key ingredient can be an arduous task, particularly in cases involving complex factual circumstances and in-depth expert opinion which suggest multiple potential causes of an accident. This article considers two recent decisions that reaffirm this position and should act as a stern reminder to practitioners as to where their focus should lie when preparing such cases for hearing.

Last year, this position was asserted by the High Court in the matter of Robinson Helicopter Company Incorporated v McDermott (Robinson).^[1] In this case, the plaintiff was a passenger in a helicopter that crashed during the course of a flight, resulting in the plaintiff suffering serious injury. The helicopter was manufactured by the defendant. It was accepted by both parties that the crash was caused by a mechanical defect, that the defendant did not cause the defect and it was not known who had caused it.

At issue in the proceedings was not how and when the defect arose, but whether a safety manual, issued by the defendant, provided sufficient instructions to facilitate detection of the defect at subsequent safety and mechanical inspections.

At first instance, it was not established that the safety manual was insufficient to identify the risk of mechanical defect. Accordingly, the trial judge found for the defendant. The majority of the Queensland Court of Appeal held, inter alia, that the trial judge was not correct in limiting the range of possible causes of the defect. The majority held that the safety manual was deficient, as the checks it suggested may not have been sufficient to indicate that fasteners, which were critical to ensuring a safe flight, were correctly assembled. The Court of Appeal found in favour of the plaintiff.

On appeal to the High Court, in a joint judgment, all five justices upheld the appeal, finding in favour of the defendant on the basis that it was open to the trial judge at first instance to find that there was no breach of care by the defendant. As such, the Court was not strictly obliged to consider the issue of causation. However, given the robust and substantial arguments advanced by the parties on the issue, it did so.

CAUSATION

Although obiter dicta and not an essential component to its final decision, the High Court justices reaffirmed the position that a plaintiff must go beyond merely proving that the negligence of a defendant caused loss or damage. The plaintiff must establish that it was the most likely possible cause of the injury suffered. Proof of causation still necessitates proof, on the balance of possibilities, that the alleged breach of duty was the most likely possible cause of the damage suffered.

RECENT DEVELOPMENTS

The judgment of J Forrest J in Victorian Workcover Authority v O’Brien & Ors,^[2] delivered on 17 February 2017, follows the above reasoning when the need to establish causation arises.

In this proceeding, the Victorian Workcover Authority (VWA) instituted an action to recover payments of compensation which it had made to and on behalf of the worker, Mr Arthur Robertson.^[3] Mr Robertson had suffered injury to his leg while riding track work at the defendant’s thoroughbred horse racing farm.

It was undisputed by the parties that in the early morning of 26 June 2008, Mr Robertson was working a horse in the company of another horse at the defendant’s property. On the first lap of the track, when cantering, the horse shied and shifted rapidly to its near side, colliding with a wooden running rail. Mr Robertson’s left leg was sandwiched between his horse and the rail, resulting in significant injury.

The parties did not agree about not only the time at which the accident occurred, but generally as to the state of visibility and/or natural light. His Honour concluded that the accident occurred between 6:30am and 6:45am, that civil dawn was at 7:07am and that sunrise was at 7:36am.

There was further disquiet among the parties as to the evidence concerning the state of the artificial lighting at the track. This evidence was described by his Honour as ‘a moveable feast’, complicated by the fact that, after Mr Robertson’s accident, two additional lights were erected at the defendant’s track. In the final analysis, his Honour concluded that, at the time of the accident in 2008, there was inadequate lighting.

As to how the accident occurred, his Honour concluded that the horse, without warning, ducked in violently and struck the inside railing with considerable force, sufficient to cause significant injury. While it was possible that the two horses came into contact causing Mr Robertson’s horse to duck in and strike the railing, his Honour could not reach any firm conclusion as to any direct or immediate reason why the horse changed course.

Negligence/breach of duty

His Honour concluded that working the horse at between 6:30am and 6:45am on the track created a foreseeable risk of injury in that the deficiency in lighting was sufficient to mean that the horse was restricted in its ability to observe what was happening on or around the track. Further, steps which could have been taken by the defendant to alleviate the potential risk of injury included an alteration which was made after the accident – a large floodlight was erected in the centre of the track and another at the barrier stalls, thereby illuminating the area where the accident took place. A further alternative was to commence working the horses at a later point in time. His Honour noted that ‘each of these steps could have been taken prior to June 2008’.

Causation

Counsel for the VWA submitted that working a horse in the dark increased the risk of injury to Mr Robertson, and therefore, given that Mr Robertson suffered injury while riding a horse in the dark, causation was made out. Specifically, it was submitted at [92] that:

‘The reality is one can’t say with any certainty what may have caused the adverse reaction but we say that that doesn’t in this circumstance matter. It’s the circumstances or the positions that the O’Briens had placed Mr Robertson in where it was much more likely that he would have got injured.’

His Honour disagreed and applied a similar reasoning to that set out in Robinson. At [93]:

‘But that proposition alone, as the authorities demonstrate, is not enough to make out the necessary causal link. In Amaca Pty Ltd v Booth, French CJ said: “Causation in tort is not established merely because the allegedly tortious act or omission increased a risk of injury. The risk of an occurrence and the cause of the occurrence are quite different things.”’

At [94] his Honour went on to note:

‘The position, at common law, was succinctly stated by the Full Court of the Supreme Court of South Australia in BHP Billiton Ltd v Hamilton: “At common law, establishing merely that it is possible that the defendant’s conduct was a cause of (or materially contributed to) the disease or injury is insufficient: it must be proved in accordance with the civil onus that it is probable that the defendant’s conduct was a cause of (or materially contributed to) the plaintiff’s disease or illness. There is also a distinction between a mere prospective risk that the defendant’s conduct might cause injury to the plaintiff and the possibility or probability that the defendant’s conduct assessed in retrospect did in fact cause the injury suffered by the plaintiff. This is not to say that, as an evidentiary matter, proof of risk of injury coupled with other circumstances may not be sufficient to prove causation on the balance of probabilities.”’

His Honour then considered the expert evidence that was relied upon by the VWA. In the case of one expert, he concluded that such expert’s opinion as to causation ‘does not stand up to close scrutiny, at least in a legal causation setting’. At [108], ‘When viewed in totality, the propositions ... do not establish causation in a tort claim.’ He noted that the expert ‘appears to have been driven to opine that there must be a correlation between working a horse in the dark and Mr Robertson’s injury simply because the accident happened in the dark and this, in turn, increased the chance of an accident being related to the lack of visibility.’

His Honour considered that there were a number of potential causes of the horse’s shift to the inside rail, each of which were possible.

At [112], he states that the ‘...VWA’s case, in effect, came down to a submission based on Dr McLean’s evidence: that there was an increased risk of injury because the horse was worked in the dark rather than on an adequately lit track and, thus, it can be inferred that this was a cause of the accident. That alone does not establish the necessary causal link – “the causal explanation” referred to by French CJ in Booth is missing. In the circumstances of this case, the alleged link between the two events is not made out as it must be, on the balance of probabilities.’

In light of the above findings, his Honour concluded that the VWA had not established that a breach by the defendants of its duty of care was a cause of Mr Robertson’s injury. In sum, it failed to prove that on the balance of possibilities, the alleged breach of duty by the defendant was the most likely possible cause of Mr Robertson’s injury. It did not meet the requirements of the test. (It should be noted that J Forrest J was once a successful licensed horse trainer who was familiar with road track work and therefore may be in a better position than most to understand the risks involved in early morning track work.)

Practitioners should be aware that this proof of causation may at times entail realistic drawing of inferences. This is particularly so where a number of possible causes present themselves, and there is difficulty in deciphering which is in fact the true cause of the damage suffered.

When a practitioner is tasked with preparing a case for hearing where causation will be at issue, this final end point of proof should always be kept at the forefront of that preparation. The following are some helpful practical tips that may aid this process:

• All other potential causes of damage, injury or loss should be considered and weighed against the claimed cause of damage;

• Any expert witness who is engaged should be asked to comment on causation and whether, on the balance of possibilities, the alleged breach of duty was the most likely possible cause of the damage suffered. They should also be asked to comment on all other potential causes and their respective likely contributors;

• All risk assessments and Worksafe assessments of the accident site should be called for through the discovery process, along with all incidents reports relating to the claimed injury and damage;

• All lay witnesses should be conferred with as soon as possible after the accident in question;

• Photographs of the scene of the accident should be taken as soon as possible after the accident in question and carefully retained; and

• A log of all alterations or modifications to the scene of the accident from the date of the accident and ongoing should be called for through the discovery process.

Katie Manning is a member of the Victorian Bar specialising in the common law/personal injury jurisdiction. PHONE [phone] EMAIL [e-mail].

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^[1] [2016] HCA 22 (French CJ, Bell, Keane, Nettle & Gordon JJ).

^[2] [2017] VSC 39.

^[3] Pursuant to s138 of the Accident Compensation Act 1985 (Vic).