As yet further proof that the most humble of circumstances can be made complex by the Law, the High Court recently (7 March 2012) handed down its decision in the “Big W hot chip case” (Strong v Woolworths [2012] HCA 5).

The case concerned a claimant, the aptly named (given the need to litigate her case all the way to the High Court) Mrs Strong, who suffered serious injuries when she slipped and fell at a suburban shopping centre.  It was not in dispute that the cause for her fall was her slip upon a greasy chip on the floor of the sidewalk sales area outside the store.

The initial trial judge concluded (and this was not disputed by the time the case got to the High Court), that the defendant had been negligent in failing to have in place an appropriate system for inspecting and cleaning the relevant area.  Interestingly it was suggested that reasonable care required inspection and cleaning of such area at 15-minute intervals [14].

The difficulty faced by Ms Strong (and many clients in similar cases) was proving that if the defendant had in fact had a proper inspection and cleaning, the chip would have been identified, cleaned away and the accident would have been avoided.  This is a classic ‘causation’ issue.  Once negligence is proven, in cases like Ms Strong’s (and medical negligence cases), the question becomes whether the negligent party should therefore be found liable to compensate the person making claim.  This depends on whether, as a matter of Law, it should be concluded that the negligence caused their harm.

Ms Strong had succeeded at trial on this issue.  This was then reversed on appeal in the New South Court of Appeal.  The Court of Appeal concluded that it could not be proven by Ms Strong that an appropriate system of cleaning and inspection would have removed the chip, because there was no evidence as to when it had in fact fallen to the ground. Based on (inherently) scant evidence, the Court of Appeal concluded there were pointers to suggest the chip had probably not been present for a long period of time. This included the fact the accident had occurred in the lunch period and apparently (I know, this is ground breaking!) people often like to buy hot chips at lunchtime.

Thankfully for Ms Strong, the High Court reversed the court of appeals decision upholding Ms Strong’s claim and awarding compensation.  This conclusion was based upon the view that when all the evidence was looked at, it could be safely concluded that an appropriate system would have been likely to have identified and removed the relevant chip.

The more interesting aspect of the matter from a medical lawyers perspective was the court’s discussion in relation to the approach to deciding “causation” questions in difficult cases, where evidence as to the link between negligence and the poor outcome is thin, or difficult.

The majority of the court confirmed that argument had not been put to it suggesting that determination of such causation questions under the Civil Liability Act resulted in any change of outcome compared to the approach to causation at, law (preceding the CLA).  

The Court confirmed that it had not been determined that a non-essential but factually contributing cause would not satisfy such test (I know a ‘double negative’).  It was observed that section 5D(2) made express provision that causation could be accepted where negligence could not be established as a necessary condition of the occurrence of harm, provided the policy considerations described in the conclusion of such provision were satisfied [26].  

Tantalisingly, they did not go further and provide any commentary as to the scope of this possibility, which has thus far been ignored/unused.

Also interestingly, as with Amaca Pty Limited v Booth [2011] HCA 53 the Court seemed to me to be careful to make clear that it has not to date been asked to decide whether negligent conduct causing a risk of injury in which the state of scientifical medical knowledge makes it impossible to prove whether or not such harm eventuated, is sufficient to permit recovery of compensation (see paragraphs [25] – [26]).

This is the single largest issue of uncertainly in medical law.

It is often the case, in many types of medical claim, that uncertainty arises as to how a patient’s situation would differ had more appropriate care been shown (for instance delay in diagnosis of cancer cases).  Resolution of how such claims are to be evaluated when little or no clear guidance can be given by medical science, as to how the patient’s position would have differed (and if it would), with better care, remains very contentious and unclear.

Whilst I may be optimistic, the High Court’s recent statements in Strong and Amaca do appear to appreciate the difficulties facing plaintiff’s as a consequence of “evidentiary gaps” in such cases.