Professional Negligence
5. Causation
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 24 Aug 2015
- Causation is the most important issue to be determined by the court when deciding a professional negligence claim.
- Section 5D of the Civil Liability Act 2002 (NSW) sets out what must be established for a court to conclude that the negligence of a professional caused the harm experienced by the client.
- Proving this relationship of causation between the actions or inactions of the professional and the harm suffered by the client is a two stage test.
- There must be factual causation; and
- it must be appropriate for the liability to extend to the harm caused.
- Factual causation means that the negligence was a necessary condition of the harm. This is referred to as the common law ‘but for’ test of causation. In other words the court must be satisfied that the harm suffered by the plaintiff would not have occurred without (but for) the defendant’s negligence.
- For the liability to extend to the particular harm suffered the court must also believe that it is appropriate to do so. For example:
- the scope of a lawyer’s liability may be limited by the instructions given to them by their client;
- the scope of an accountant’ s liability may be limited if the client has provided insufficient or wrong information; and
- the professional and the client may have agreed to limit the scope of the professional’s liability through a clause in their contract of engagement.
- If there is not enough evidence to establish that the alleged conduct caused the harm the court may consider other relevant things including whether or not responsibility for the harm should be imposed on the negligent party and why.
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