On 17 January 2017, the WA Court of Appeal delivered its decision in the matter of Proudlove v Burridge [2017] WASCA 6. This was a case that had received extensive media coverage. The Appellant was a young man who was catastrophically injured when the vehicle in which he was a passenger struck a horse. At trial, the action was dismissed.

The Court of Appeal decision dismissing the Appeal was split. Martin CJ delivered a dissenting judgment. Newnes and Mitchell JJA delivered the majority decision in favour of the Respondents.

The core aspect of the Appeal was the consideration of causation in negligence.

Essentially, the Appellant argued that the evidence lead to a conclusion that the Respondent was not exercising reasonable care. The Respondent argued that causation was not proved, by submitting that the accident occurred in circumstances where there was nothing the Respondent could have done to avoid the collision.

Findings of fact made by the trial judge were challenged. The majority held that the findings made by the trial judge should not be disturbed. In particular, evidence about reaction times and stopping distances was central to the respective positions. Most of the evidence on that issue came from expert witnesses. The majority concluded that there was no reason to disturb the findings of fact made at trial. The Chief Justice, in dissent, disagreed – at one point suggesting that once the trial judge had concluded that there had been a breach of duty then it followed “as a matter of common sense” to conclude that causation was proved. The Chief Justice did not, with respect, discuss the implications of the Civil Liability Act (WA) (2002) in arriving at that conclusion.

Accepting that s 5D of the CL Act makes it clear that the onus of proof on all aspects of causation was on the Appellant Plaintiff at trial, the majority applied the tests in that section. They were unable to find that the Appellant had discharged that onus. As a matter of causation, the majority found that the Appellant had simply failed to prove causation as the Act requires. Among the expert evidence accepted by the trial Judge and the majority on Appeal were the tables of stopping distances and reaction times set out in the “Austroads Guide to Road Design”. This is a useful finding about the relevance of that resource.

It is our view that the decision is instructive about the need for Plaintiffs to prove every element of causation to the standard required by s5C of the Civil Liability Act. It is not enough to prove the existence of a duty of care and breach of that duty. As in all litigation, careful preparation of evidence is required to enable the best case to be put to the Court and prove both breach of duty and causation.

As a matter of law, the decision also contains some interesting discussions on the nature of the ‘reasonable man’ test and we recommend that our insurer clients review the decision.