Causation and appropriate/exceptional cases: the beginnings of a novel pathway in Western Australia
Published on February 4, 2020 by Bill Madden
As first published in the Australian Health Law Bulletin, November 2019 Volume 27 (10).
The District Court of Western Australia has now given consideration twice, albeit in obiter remarks, to the alternative “exceptional/alternative case” causation pathway set out in state/territory civil liability legislation, in the context of medical negligence claims. These two first instance decisions are of interest, however the validity of its application in future decisions would benefit from judicial consideration at the appellate level.
Readers of this publication will be quite familiar with the factual/normative causation approach introduced more than 15 years ago in the civil liability legislation. Considered by the High Court 10 years ago in Adeels Palace Pty Ltd v Moubarak, it is now quite clear that in cases where the Civil Liability Act 2002 (NSW) or equivalent statutes are engaged, it is the applicable statutory provision that must be applied.1
Two recent first instance decisions of the District Court of Western Australia have discussed, obiter, the alternate causation pathway set out in the civil liability legislation, commonly described as the “exceptional case” pathway. It remains to be seen whether the approach supported by the two first instance decisions discussed below will be supported at the appellate level, and if so, whether the variation in wording of the relevant subsections varies across Australia will limit the broader application of the approach.
Absent proof of factual causation
Consistent with civil liability legislation elsewhere, s 5C of the Civil Liability Act 2002 (WA) begins with the factual/normative causation approach. It provides:
(1) A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements —
(a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the tortfeasor’s liability to extend to the harm so caused (scope of liability).
Subsection (2) then addresses the potential for proof of causation where factual causation cannot be proven on the balance of probabilities:
(2) In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) —
(a) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b) whether and why the harm should be left to lie where it fell.
Subsection (2) uses the undefined term appropriate case, also used in the Victorian legislation.2 Western Australia and Victoria are the only two jurisdictions to use appropriate in that context. New South Wales and Queensland refer to an exceptional case.3 An entirely different approach is taken in the Australian Capital Territory and South Australia, where the legislation refers to a plaintiff negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to one or more of them.4 The Northern Territory legislation is silent on this issue.
The Lazarevski decision
Lazarevski v North Metropolitan Health Service was a medical negligence claim brought by a female patient with radiating chest pain, discharged from hospital without blood testing for Troponin levels. Breach of duty was found5 and the s 5PB analysis6 saw the District Court of Western Australia, (the court) conclude that the failure to administer the serial troponin tests was not a practice then widely accepted. That conclusion was probably assisted by the defendant’s written guideline entitled ACS (Acute Coronary Syndrome) pathway, which required the performance of serial troponin tests for certain patients.7 Although the defendant argued that there was a discretion as to whether to follow the pathway or not, the court held:
 Guidelines such as the Pathway are important in clinical practice in reducing error and enhancing standardisation of practice. On its face the Pathway did not provide for any exercise of discretion as to whether it was or was not to be followed. There was no evidence to explain why, despite its terms, Dr Winton had the latitude to choose whether or not he followed the Pathway.
The court reviewed the evidence on causation and found that, if tested, the plaintiff’s troponin levels would have been raised and she would have been kept in hospital for appropriate conservative management which would probably have avoided her later serious heart attack. The plaintiff established factual causation on the balance of probabilities for the purposes of s 5C(1)(a) and no considerations arose which might have stood in the way of a normative causation finding.8
A novel approach was then addressed on an obiter basis, in the application of s 5C(2) on the assumption that factual causation was not made out. The reasoning was brief and so can be set out in full:
 In the event that I had not been satisfied on the balance of probabilities of factual causation, I would have concluded that the uncertainty, that so precluded me, was attributable to the shortcomings of Dr Winton and the hospital in not ordering the troponin testing. This would be an appropriate case where the defendant’s fault and the circumstances established by the evidence should be taken to establish factual causation even if, contrary to my view, the plaintiff had not proved factual causation.
 The plaintiff placed the defendant on notice of its intention to rely, if required, on s 5C(2). The defendant should not benefit from any evidentiary gap, namely an inability to scientifically determine from the 9 January 2014 blood tests whether, on 6 January 2014, Ms Lazarevski’s unmeasured troponin levels would have been elevated. They should have been measured. The defendant should not benefit from that failure to measure. That is particularly so when the unilateral decision not to comply with the Pathway was not disclosed.
 Applying the relevant factors that O’Neal DCJ considered persuasive in this regard in Panagoulis,9 there was no sensible reason to withhold the administration of serial troponin testing. Notwithstanding the ‘false positives’ argument, I am quite satisfied that there was no harm to Ms Lazarevski by providing troponin testing. Ms Lazarevski played no role, and in no way contributed to the harm that she sustained on 9 January 2014. The treatment that would have avoided the harm she suffered was known to the hospital staff, it was available, and it was simple to implement.
 The defendant is not a vulnerable tortfeasor who needs some protection against suit. To the extent that the law of negligence can, by a finding of liability, encourage other potential tortfeasors to take reasonable care, responsibility for this harm should be imposed on the defendant. There is no sensible reason for leaving Ms Lazarevski to bear the harm that she has suffered.
The Panagoulias decision
As cited in the Lazarevski decision, Panagoulias v East Metropolitan Health Service No 4 was a medical negligence claim alleging delay in treatment of bacterial meningitis. Again, breach of duty was found and the court did not accept the defendant’s argument that the current state of scientific knowledge did not allow any relevant conclusions to be drawn as to the relationship between belated administration of antibiotics and the adverse outcome suffered by the plaintiff because of his bacterial meningitis.10 Again, however, the trial judge addressed in obiter a finding in favour of the plaintiff using s 5C(2), as follows:
 If there is such a gap, that is, if it cannot be said to the certainty of probability that the plaintiff would not have suffered the irremedial harm that he did if he had received appropriate treatment prior to a given time, that ‘gap’ arises solely because of the necessary state of scientific knowledge. I say ‘necessary’ because ethical considerations mean that no study could proceed where patients were deliberately infected and treatment withheld for the sake of a more precise comparison. There is no way in any civilised society that studies could be conducted to give precision to such a terrible calculation.
 These are the factors that I have regard to in considering whether, if fault cannot be established as a necessary condition of the occurrence of the plaintiff’s harm, that this is an appropriate case where the fault of the first defendant and the circumstances established by the evidence should be taken here to establish factual causation:
1. The medical staff of RPH reasonably suspected that the plaintiff was suffering bacterial meningitis within an hour of the plaintiff’s presentation at the ED.
2. As the evidence established, and as Dr Wilson knew, meningitis is a serious life-threatening illness for which prompt treatment is required.
3. Numerous studies have shown that a delay in the initiation of antimicrobial therapy after patient arrival in EDs is associated with adverse clinical outcomes.
4. The state of medical knowledge with respect to this condition was such that the Australian Therapeutic Guidelines disseminated in 2006 required the administration of antibiotics and corticosteroids as soon as possible when bacterial meningitis was suspected or proven.
5. No sensible reason whatsoever was offered for failing to treat the plaintiff in a timely way. Counsel for the first defendant was correct to say that he did not choose to ‘defend the indefensible’.
6. Quite apart from the absence of evidence from the first defendant on this subject, on the expert medical evidence generally, there is no sensible reason to withhold the administration of antibiotics and corticosteroids when bacterial meningitis is reasonably suspected. No harm to the plaintiff would have been risked by prompt treatment.
7. The plaintiff played no role and in no way contributed to the harm that befell him.
8. The RPH staff was solely responsible for the failure to provide treatment in a timely way.
9. The treatment that would have avoided the harm suffered by the plaintiff was known to the RPH staff, it was available, and simple to implement.
10. The first defendant could not be described as a vulnerable tortfeasor who needs some protection against suit.
11. The breach of duty by the staff of the first defendant here transcended mere negligence. It is better characterised as ‘gross’. To the extent that the law of negligence can, by a finding of liability, encourage other potential tortfeasors to take reasonable care, responsibility for this harm should be imposed on the first defendant.
12. There is no sensible reason offered for leaving the plaintiff to bear the harm that he has suffered.
 In the circumstances, if it were to be concluded that weight should not be given to the conclusions of Dr Eisen and Professor Braslins as to the time when appropriate treatment would probably have saved the plaintiff from the harm he suffered, then I am satisfied that this is an appropriate case where factual causation should be taken to be established pursuant to s 5C(2).
There was an appeal from the Panagoulias decision, East Metropolitan Health Service v Popovic.11 Unfortunately the appellate court was not called upon to address the s 5C(2) point.
The Lazarevski and Panagoulias decisions, in their appropriate case obiter approach, do not discuss any relevant difference between the appropriate case terminology of Western Australia and Victoria, compared to the exceptional case terminology of New South Wales and Queensland. Their approach might arguably be applicable in New South Wales and Queensland, though difficult to extend to the Australian Capital Territory and South Australia, where the legislation requires a plaintiff negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to one or more of them.
However, the Western Australian appropriate case reasoning may need to be approached cautiously, in the absence of its consideration by an appellate court and because of the unanimous remarks of the Victorian Court of Appeal in Powney v Kerang and District Health  VSCA 221:
… the section was not intended as a fall back provision in a conventional case for a plaintiff who is unable to establish factual causation. Rather, it was designed to accommodate cases quite out of the ordinary — particularly those involving exposures to a particular agent on multiple occasions, all of which contributed to a disease process but factual causation could not be attributed to a specific exposure. Alternatively, it was to be employed where scientific evidence may be developing in identifying the level of exposure to a particular agent necessary to produce injury.12
As discussed by Tracey Carver,13 the Powney matter was one where there was one alleged tortious act and no question of multiple causes or unknown aetiology of the alleged damage. Arguably the same may be said of the Lazarevski and Panagoulias decisions, except perhaps on the developing state of scientific knowledge point.14 There may be scope for further development of the presently novel appropriate case Western Australian pathway, however the validity of its application in future decisions would benefit from judicial consideration at the appellate level.
1. Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628;  HCA 48; BC200910035 at .
2. Wrongs Act 1958 (Vic), s 51(2).
3. Civil Liability Act 2002 (NSW), s 5D(2). Civil Liability Act 2003 (QLD), s 11(2).
4. Civil Law (Wrongs) Act 2002 (ACT), s 45. Civil Liability Act 1936 (SA), s 34.
5. Lazarevski v North Metropolitan Health Service  WADC 84; BC201940447 at .
6. Above, at –.
7. Above n 5, at .
8. Above n 5, at .
9. Discussed later in this article. Note however that the incorrect spelling of the name of the plaintiff.
10. Panagoulias v East Metropolitan Health Service [No 4]  WADC 118; BC201740790 at .
11. East Metropolitan Health Service v Popovic  WASCA 18; BC201900333.
12. Powney v Kerang and District Health (2014) 43 VR 506;  VSCA 221; BC201407557 at  per Osborn, Beach JJA and Forrest AJA.
13. T Carver “Medical negligence, causation and ‘exceptional cases’ under the civil liability legislation: Powney v Kerang & District Health  VSCA 221” (2015) 127 Precedent 58.
14. Above n 10, at .