CLA – “But for” test & its application

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009)

The facts involved injuries occasioned from a shooting at licensed premises. Adeels Palace appealed the decision and the issues were duty, breach and causation in the context of the New South Wales Civil Liability Act 2002 (s 5A-D) and the Liquor Act. The appeal was allowed on causation and is of interest given s 5D’s identical terms to s 11 of the Civil Liability Act 2002 QLD.


The Honours were satisfied that duty was made out:


In the circumstances reasonably to be contemplated before the restaurant opened for business on 31 December 2002 as likely to prevail on that night, Adeels Palace owed each plaintiff a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is consistent with the duty imposed by statute upon the licensee and which was a duty enforceable by criminal processes…


The first point to make about the question of causation is that, in these cases, it is governed by the Civil Liability Act.


Section 5D(1) of that Act divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability.


Dividing the issue of causation in this way expresses the relevant questions in a way that may differ from what was said by Mason CJ, in March v Stramare (E & M H) Pty Ltd[25], to be the common law’s approach to causation. The references[26] in March v Stramare to causation being “ultimately a matter of common sense” were evidently intended to disapprove the proposition “that value judgment has, or should have, no part to play in resolving causation as an issue of fact”. By contrast, s 5D(1) treats factual causation and scope of liability as separate and distinct issues.


It is not necessary to examine whether or to what extent the approach to causation described in March v Stramare might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1). It is sufficient to observe that, in cases where the Civil Liability Act or equivalent statutes are engaged, it is the applicable statutory provision that must be applied.


Next it is necessary to observe that the first of the two elements identified in s 5D(1) (factual causation) is determined by the “but for” test: but for the negligent act or omission, would the harm have occurred?

However, given the lack of evidence considering breach of duty at trial there Honours  were not satisfied breach should be considered any further and went onto causation.





Recognising that changing any of the circumstances in which the shootings occurred might have made a difference does not prove factual causation. Providing security at the entrance of the restaurant might have delayed the gunman’s entry; it might have meant that, if Mr Bou Najem was a random victim, as seemed to be the case, someone else might have been shot and not him. But neither plaintiff proved factual causation by pointing to possibilities that might have eventuated if circumstances had been different.




Nor was “but for” causation established in these cases by observing that the relevant duty was to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. That is, the question of factual causation was not answered in these cases by pointing out that the relevant duty of care was to take reasonable steps to prevent violent assault, that each plaintiff was the victim of a violent assault, and that the damage sustained by the plaintiffs was “the very kind of thing” which the relevant duty obliged Adeels Palace to take reasonable steps to prevent[30]. That observation may bear upon questions about scope of liability[31]. Describing the injury as “the very kind of thing” which was the subject of the duty must not be permitted to obscure the need to prove factual causation. Unlike Home Office v Dorset Yacht Co Ltd[32] and Stansbie v Troman[33], these are not cases where the evidence demonstrated that the taking of reasonable care would probably have prevented the occurrence of injury to the plaintiffs.

In considering causation their Honours interpreted the language of s 5D, which is in the same terms as s 11 of the Civil Liability Act 2002 QLD, and held as follows:


In the present case, in contrast, the “but for” test of factual causation was not established. It was not shown to be more probable than not that, but for the absence of security personnel (whether at the door or even on the floor of the restaurant), the shootings would not have taken place. That is, the absence of security personnel at Adeels Palace on the night the plaintiffs were shot was not a necessary condition of their being shot. Because the absence of security personnel was not a necessary condition of the occurrence of the harm to either plaintiff, s 5D(1) was not satisfied. Did s 5D(2) apply?


Section 5D(2) makes provision for what it describes as “an exceptional case”. But the Act does not expressly give content to the phrase “an exceptional case”. All that is plain is that it is a case where negligence cannot be established as a necessary condition of the harm; the “but for” test of causation is not met. In such a case the court is commanded “to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party”. But beyond the statement that this is to be done “in accordance with established principles”, the provision offers no further guidance about how the task is to be performed. Whether, or when, s 5D(2) is engaged must depend, then, upon whether and to what extent “established principles” countenance departure from the “but for” test of causation.


At once it must be recognised that the legal concept of causation differs from philosophical and scientific notions of causation[36]. It must also be recognised that before the Civil Liability Act and equivalent provisions were enacted, it had been recognised[37] that the “but for” test was not always a sufficient test of causation. But as s 5D(1) shows, the “but for” test is now to be (and has hitherto been seen to be) a necessary test of causation in all but the undefined group of exceptional cases contemplated by s 5D(2).


Even if the presence of security personnel at the door of the restaurant might have deterred or prevented the person who shot the plaintiffs from returning to the restaurant, and even if security personnel on the floor of the restaurant might have been able to intervene in the incident that broke into fighting in time to prevent injury to anyone, neither is reason enough to conclude that this is an “exceptional case” where responsibility for the harm suffered by the plaintiffs should be imposed on Adeels Palace. To impose that responsibility would not accord with established principles.


It may be that s 5D(2) was enacted to deal with cases exemplified by the House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd[38] where plaintiffs suffering from mesothelioma had been exposed to asbestos in successive employments. Whether or how s 5D(2) would be engaged in such a case need not be decided now. The present cases are very different. No analogy can be drawn with cases like Fairchild. Rather, it would be contrary to established principles to hold Adeels Palace responsible in negligence if not providing security was not a necessary condition of the occurrence of the harm but providing security might have deterred or prevented its occurrence, or might have resulted in harm being suffered by someone other than, or in addition to, the plaintiffs. As in Modbury[39], the event which caused the plaintiffs’ injuries was deliberate criminal wrongdoing, and the wrongdoing occurred despite society devoting its resources to deterring and preventing it through the work of police forces and the punishment of those offenders who are caught. That being so, it should not be accepted that negligence which was not a necessary condition of the injury that resulted from a third person’s criminal wrongdoing was a cause of that injury. Accordingly, the submission that the plaintiffs’ injuries in these cases were caused by the failure of Adeels Palace to take steps that might have made their occurrence less likely, should be rejected.

 Brisbane Barrister – David Cormack

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