City of Stirling v Tremeer

(2006) 32 WAR 155; [2006] WASCA 73

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Causation
4. › Material contribution
5. › Whether failure to provide soft surface beneath playground equipment caused quadriplegia
6. › Whether overwhelming expert evidence displaced prima facie causal connection
7. › Whether trial judge's causation finding against weight of evidence
1. Tort
2. › Negligence
3. › Causation
4. › But for test
5. › Indivisible injury
6. › Whether breach materially contributed to indivisible injury of quadriplegia where injury would have occurred regardless of breach
1. Appeal
2. › Standard of appellate review
3. › Findings of fact
4. › Credibility-based findings
5. › Whether findings glaringly improbable or contrary to compelling inferences
6. › Fox v Percy principles
1. Tort
2. › Negligence
3. › Duty of care
4. › Occupier's liability
5. › Children's playground equipment
6. › Adult user of children's equipment
7. › Standard of care for unintended users

Quick Take

Where a case is conducted on the basis that the relevant injury is indivisible (here, quadriplegia), and the overwhelming expert evidence establishes that the indivisible injury would have occurred regardless of the defendant's breach, the plaintiff fails on causation even though the breach increased the severity of individual component injuries. A different result might follow if the case were pleaded on the basis that the breach aggravated the injuries, raising issues of apportionment. The characterisation of the relevant injury as divisible or indivisible is critical to the causation analysis.