Causation- A Tale of Hot Chips, Chicken Soup and ASD!!!

As the name suggests, causation relates to whether or not there is a link between the damage or harm (such as personal injury or property damage) of the plaintiff (person who receives the loss) and the actions of the defendant (the person who allegedly causes the loss).

I’ll be honest and tell you- students often struggle with causation. In theory it is not conceptually difficult, but when it is applied in real life circumstances, it can be tricky…

One of the causation cases we talk about in my torts class relates to a humble hot chip. Now anyone who knows me realises- hot chips are one of my favourite things…in fact if I knew I was about to die…I think a big bowl of hot chips and gravy would be one of my final requests!! Anyway…I digress… the causation question here was how long the hot chip was present on the floor of a food court…

One area where causation can be really complex relates to medical negligence issues. For example- in what circumstances should a doctor be liable if a patient acquires a subsequent infection or other disorder after they have treated you? Also, should doctors be liable for losses which perhaps the patient could have helped avoid??

Anyway- I will give you some examples of recent medical negligence cases where causation was an issue. One is Pederson v Northern NSW Local Health District– a 2020 NSW Supreme Court decision. In this case a 10-year-old boy sued a hospital for injuries he incurred when he was born. One of his most serious injuries related to the development of autism (ASD). The key legal question was whether or not the ASD was a direct result of the defendant’s negligence. One of the factual issues was whether or not genetic testing should be undertaken in order to help determine the cause of the ASD. In this case Justice Campbell ordered genetic testing to be undertaken. This case suggests that both medical opinion and other evidence, such as epidemiology studies, can both be used as an aid to prove causation.

Another recent case relates to chicken soup- which as most of us know is supposed to cure any ailments when one is sick…lol Anyway, in Hawkins v South Western Sydney Local Health District [2020] NSWDC 308 the plaintiff claimed one of his lunches whilst in hospital included solid pieces of chicken. This was contrary to his prescribed ‘free fluids diet.’ On the day the plaintiff claimed he was negligently given solid pieces of chicken in his soup, he became severely ill. This allegedly led to a ruptured wound.

Judge Weinstein held the plaintiff was incorrect in his assertion he was served chicken soup on the relevant day. It was noted this may be as a result of the opioid medication he was on at the time. The hospital records also suggested the plaintiff was served the correct meal. Therefore, it was unable to be shown the defendant’s alleged negligence caused the harm of the plaintiff. Instead the judge accepted the defendant’s assertion that the condition was a materialisation of a known risk- ie the plaintiff’s history of smoking. This case shows how important keeping records and having appropriate procedures is in order to possibly counteract a negligence claim.

So there we have it- causation in negligence actions can be tricky- but it is also seriously interesting- especially when hot chips and chicken soup are involved!!