Foster, Neil --- "Material contribution' should be seen as an example of the 'but for' test" [2023] PrecedentAULA 15; (2023) 175 Precedent 8

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‘MATERIAL CONTRIBUTION’ SHOULD BE SEEN AS AN EXAMPLE OF THE ‘BUT FOR’ TEST

By Associate Professor Neil Foster

One of the most hotly contested phrases in the law of causation in private law is ‘material contribution’. Lord Reid used the phrase in Bonnington Castings Ltd v Wardlaw (Bonnington)^[1] when he said that ‘[the plaintiff] must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury [emphasis added]’.^[2] Some have taken this to mean that ‘material contribution’ is something different to classic ‘but for’ causation. The aim of this article is to demonstrate that this is not correct; that the best way to read ‘material contribution’ in Bonnington is as an example of, not an exception to, ‘but for’ causation; and to argue that this misreading of the case should no longer be perpetuated. The article will particularly address the Australian law on the matter.

It may be best at the outset to say that this article does not make any substantive comment on the ‘extended’ form of causation first recognised in Fairchild v Glenhaven Funeral Services Ltd (Fairchild),^[3] where the House of Lords ruled that in exceptional cases, such as where harm has been caused by one of a number of possible defendants but it is scientifically impossible to determine which one, a ‘modified’ causation rule should allow recovery on proof of a material increase in risk alone. It seems to be generally recognised that this principle is not best described as ‘material contribution to harm’.^[4]

Some confusion seems to have been caused because the Ipp Report^[5] – the source of significant amendments to private law in Australia – led to several jurisdictions adding a clause to their legislation that is designed to account for the possibility that Fairchild would be so accepted. In NSW, for example, this is seen in s5D(2) of the Civil Liability Act 2002 (NSW) (CLA):

‘In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.’

It seems that the reference to ‘established principles’ is intended to allow a court to uphold the Fairchild decision (the provision seems to ‘foreshadow’ a possible acceptance of Fairchild by the courts).^[6] But does Bonnington also satisfy the description of a case where negligence ‘cannot be established as a necessary condition of the occurrence of harm’? When properly analysed, it does not.

THE DECISION IN BONNINGTON

A successful action for personal injury damages, whether based on the tort of negligence or an action for breach of statutory duty, requires proof that the wrong committed by the defendant has caused the harm suffered by the plaintiff.^[7]

In Bonnington, a worker contracted a lung disease, pneumoconiosis, by inhaling air that contained minute particles of silica while at work. This was the cumulative effect of dust that emanated from two sources: one had no known means of preventing the spread of dust (the pneumatic hammer); for the other (the ‘swing grinders’) there was a mechanism for extraction of dust that had been allowed to become ineffective. Hence only one of the sources of dust was ‘wrongful’. The House of Lords found that, so long as the dust that could have been prevented made some real contribution to the harm, it could be held to be a cause of the harm.

The primary cause of action discussed in Bonnington was the tort of breach of statutory duty, rather than the separate tort of negligence.^[8] But the House of Lords made it clear that the principles of causation they were discussing were the same in both breach of statutory duty actions and in actions for negligence.^[9]

The issue on appeal was clearly not (despite later misreading of the case) directed to the question as to whether the test for causation should include situations where the ‘but for’ test did not apply. Instead, the appeal related to questions of who bore the onus of proof once a breach of the statute had been shown, and what degree of contribution to the occurrence of harm would be sufficient to establish causation.

On the onus of proof issue, the House disapproved of a comment that had been made by the Court of Appeal in Vyner v Waldenberg Brothers Ltd (Vyner )^[10] that, once a statutory safety provision had been shown to be breached, ‘the onus of proof shifts on to the employer to show that the breach was not the cause’.^[11] The House agreed that this statement went too far, and the onus still lay on the plaintiff to show that they had suffered harm caused by the breach.^[12]

Lord Reid’s oft-quoted comment comes at the conclusion of the following paragraph explaining the impact of over-ruling Vyner on this point:

‘The fact that Parliament imposes a duty for the protection of employees has been held to entitle an employee to sue if he is injured as a result of a breach of that duty, but it would be going a great deal farther to hold that it can be inferred from the enactment of a duty that Parliament intended that any employee suffering injury can sue his employer merely because there was a breach of duty and it is shown to be possible that his injury may have been caused by it. In my judgment, the employee must in all cases prove his case by the ordinary standard of proof in civil actions: he must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury [emphasis added].’^[13]

Lord Reid’s point is not to sharply contrast ‘caused’ with ‘materially contributed’ – the final emphasised words are seen to be a composite phrase noting the accepted law on causation. The contrast being made is with a comment in Vyner that it was merely ‘possible’ that the defendant’s breach of statute caused the plaintiff’s harm. The ‘ordinary standard of proof’, proof on the balance of probabilities, was to be applied in the context of the ‘but for’ test, as it was to other elements of the action.

Why does his Lordship, then, use ‘materially contributed’ in the final phrase, separated from ‘caused’ by the disjunctive ‘or’? The answer seems clear. This case involved a possible cause of harm that was not the ‘major’ or ‘sole’ cause. The intention is to say that even something in that category, if it makes a ‘material’ or ‘non-trivial’ contribution, can be a cause for legal purposes.

Lord Reid noted that it was not necessary for something to be a cause for it to be the ‘most probable’ contribution. He continued:

‘The medical evidence was that pneumoconiosis is caused by a gradual accumulation in the lungs of minute particles of silica inhaled over a period of years. That means, I think, that the disease is caused by the whole of the noxious material inhaled and, if that material comes from two sources, it cannot be wholly attributed to material from one source or the other ...
It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material.’^[14]

His Lordship’s opinion after reviewing the evidence was:

‘[I]t is proved not only that the swing grinders may well have contributed, but that they did in fact contribute a quota of silica dust which was not negligible to the pursuer's lungs, and therefore did help to produce the disease.’^[15]

In the context of this case, then, when Lord Reid says, ‘caused or materially contributed’, his statement seems to mean something like ‘either was the sole cause of the harm, or was part of a set of causes all of which together were necessary’. Hence ‘material contribution’ refers to a ‘but for’ (necessary) cause (‘the dust from both sources’ caused the condition), just one that is not the only element of a causal set.

The view that something makes a ‘material contribution’ to an outcome if it forms a necessary part of a set of causes, which is a ‘but for’ cause of the outcome, may invite comparison with the ‘NESS’ test developed by Professor Wright to account for situations where two independent and concurrent events have been responsible for an outcome.^[16] But this understanding of material contribution, as set out in Bonnington, is different (though not inconsistent) with Wright’s test. Here we only have one set of events that is a ‘but for’ cause, rather than two or more. The above analysis shows that, for the specific outcome in the case, the ‘guilty dust’ was a necessary element of the set of causes (which also included the ‘innocent dust’) which produced the state of affairs in which the plaintiff suffered his injury. But there was no other competing set of events, on the facts as shown, that would also have resulted in the same outcome at the same time.^[17]

Professor Bailey’s comment on Bonnington is apt:

‘[T]he most natural interpretation of the holding is that the House of Lords regarded the combination of both sources of dust as necessary to cause the disease.’^[18]

The view that Bonnington is not an exception to ‘but for’ causation has been confirmed in more recent years by the Judicial Committee of the Privy Council in Williams v The Bermuda Hospitals Board (Williams),^[19] where the Board held that Bonnington was an orthodox example of ‘but for’ causation.

Bailey notes that in Williams, the Board expressly disagreed with the one English decision whose ratio had been that there was a difference between ‘but for’ causation and ‘material contribution’: Bailey v Ministry of Defence.^[20] Lord Toulson noted:

‘The Board does not share the view of the Court of Appeal that the case [Bailey] involved a departure from the ‘but-for test’. The judge concluded that the totality of the claimant’s weakened condition caused the harm. If so, ‘but-for’ causation was established.’^[21]

Bailey’s articles provide a compelling argument that there was no distinction between ‘but for’ and ‘material contribution’ in Bonnington itself, and that Williams now provides clearly persuasive authority that there is no room for such a distinction in the current common law. Williams, of course, as a decision of the Privy Council, is not binding in Australia. But the impressive roster of Board members involved in the decision, all members of the UK Supreme Court, provides a persuasive reason to believe that the decision is correct.

AUSTRALIAN COMMENT ON BONNINGTON

What views on these issues have been accepted in Australia?

One of the primary authorities on the question of causation in Australia is the High Court decision in March v E and MH Stramare Pty Ltd (March).^[22] But, while there are some passing references to the concept of ‘material contribution’, the case does not draw any clear distinction between that phrase and ‘but for’ as a test for causation. Chief Justice Mason, in the majority, commented with reference to Bonnington (and other decisions) that:

‘[T]he law's recognition that concurrent or successive tortious acts may each amount to a cause of the injuries sustained by a plaintiff is reflected in the proposition that it is for the plaintiff to establish that his or her injuries are “caused or materially contributed to” by the defendant's wrongful conduct.’^[23]

Here the concept is used in the orthodox sense that there can be concurrent (or successive, as on the facts of the later decision in Williams) acts that may all be said to be a partial cause of harm. In dissent in March, McHugh J’s reference to Bonnington was also uncontroversial:

‘Moreover, a negligent act or omission will be held to have materially contributed to the damage if its contribution was not de minimis.’^[24]

The difference between McHugh J and the majority in March concerned the role that should be played by the ‘but for’ test in the causation inquiry. For McHugh J, the law should move to recognise the ‘but for’ test as the primary test for factual causation, while recognising that other ‘legal policy’ issues might deny responsibility. For the majority, causation as a whole should be decided as a matter of ‘common sense’ in a decision that incorporates both a ‘but for’ test and other matters. But neither McHugh J nor the majority suggested that ‘material contribution’ amounted to an exception to the ‘but for’ test.

This important context provides background to the comments by Allsop P in Allianz Australia Ltd v Sim,^[25] which might be read as suggesting that the decision in March was somehow adopting ‘material contribution’ as an alternative to the ‘but for’ test. As part of this argument, his Honour cites the opening words of Mason CJ in March, rejecting the ‘but for’ test as ‘the exclusive test of causation in negligence cases.’^[26] But, with respect, this comment was not offered as a way of contrasting ‘material contribution’ with ‘but for’. Chief Justice Mason’s comments were simply a response to McHugh J’s proposals to set up ‘but for’ as the single test for all legal causation issues (including what are usually called ‘legal cause’ or ‘scope of liability’ issues) and simply meant that a range of factors would play into a ‘common sense’ determination of causation.

Nor do the comments of the High Court in Amaca v Booth^[27] suggest any clear delineation between ‘but for’ and ‘material contribution’. Justices Gummow, Hayne and Crennan noted:

‘The ‘but for’ criterion of causation proved to be troublesome in various situations in which multiple acts or events led to the plaintiff’s injury, for example, where the development of a particular medical condition was the result of multiple conjunctive causal factors. In such cases what may be unclear is the extent to which one of these conjunctive causal factors contributed to that state of affairs. These situations have been addressed by the proposition stated by Lord Watson in Wakelin v London and South Western Railway Co [(1886) 12 App Cas 41 at 47] that it is sufficient that the plaintiff prove that the negligence of the defendant “caused or materially contributed to the injury”.’^[28]

Their Honours go on to quote Bonnington. It is true that this paragraph taken in isolation might be read as contrasting ‘but for’ with a criterion of ‘caused or materially contributed to’. But in context, the implied contrast seems to be rather between a ‘but for’ criterion applied to a ‘sole’ cause, with a situation where there are ‘multiple conjunctive causal factors’. And on the facts of this decision, it was held that the trial judge was entitled to find as a fact that a long course of exposure to asbestos had cumulatively made a ‘material contribution’ to the mesothelioma suffered by the plaintiff.^[29] The decision as a whole provides no reason to draw a sharp distinction between ‘but for’ causation and material contribution.

Strong v Woolworths^[30] seems an odd case in this collection of medically complex asbestos-related matters for consideration of these issues. The facts involved a straightforward question concerning liability for a trip and fall in a shopping centre. The alleged cause was a greasy hot chip which had not been cleaned up from the floor. There is much to be said for the comment of Heydon J (in dissent, though not for reasons relating to the concerns of this article) that:

‘[T]he present appeal does not raise “material contribution” problems: the question is not whether the first respondent’s breach of duty made a material contribution to the injury, for it made either no contribution at all, or the only contribution.’^[31]

However, in the decision on appeal the NSW Court of Appeal had offered some comments on the concept of ‘material contribution’ and the majority of the High Court followed suit. In particular, the Court of Appeal noted the discussion of the concept by Allsop P in Zanner v Zanner (Zanner):^[32]

‘[M]aterial contributions that have been taken to be causes in the past (notwithstanding failure to pass the ‘but for’ test) such as in Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613 are taken up by s5D(2) which, though referring to “an exceptional case”, is to be assessed “in accordance with established principles”.’^[33]

The argument of this article so far, and the above analysis of Bonnington, challenges this assertion. Formally, the statement is obiter dicta – it was not necessary for resolution of the issues in Zanner.^[34]

Having noted Allsop P’s comments in Zanner in Strong v Woolworths, the High Court did not in fact directly approve that remark. Later on, in the same judgment, they said:

‘The authors of the Ipp Report and Allsop P in Zanner v Zanner assume that cases exemplified by the decision in Bonnington Castings would not meet the test of factual causation under s5D(1)(a). However, whether that is so would depend upon the scientific or medical evidence in the particular case, a point illustrated by the decision in Amaca Pty Ltd v Booth with respect to proof of causation under the common law. In some cases, although the relative contribution of two or more factors to the particular harm cannot be determined, it may be that each factor was part of a set of conditions necessary to the occurrence of that harm [emphasis added].’^[35]

This paragraph leaves open the view that Allsop P was, with respect, mistaken in his assertion that Bonnington was inconsistent with ‘but for’.

The most recent comments from the High Court on the question of ‘material contribution’ were made in Lewis v Australian Capital Territory^[36] by Edelman J. While lengthy, the following quote is important in seeking to determine what ‘material contribution’ means in Australia at the moment:

‘Causation of loss, in this strict sense, is not always required for a defendant to be responsible for losses arising from a wrongful act. In exceptional cases, a defendant can be held responsible for a loss if their actions materially contributed to a loss which would have occurred in any event. A well-established example is where a defendant’s fraudulent misrepresentation is a factor that induces an adverse decision resulting in loss even if that decision would have been made in any event. In order to include these exceptional cases within the test for the required link this Court has sometimes described the link required for imposition of responsibility as requiring the act to have ‘caused or materially contributed’ to the loss. The extension of responsibility in exceptional cases based on material contribution was traced by four members of this Court in Strong v Woolworths Ltd to a Scottish decision in which several factories had contributed to the polluted state of a river. In that case, liability for nuisance did not require the act of any single factory to have been necessary for the nuisance. As French CJ, Hayne and Kiefel JJ said in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd, a material contribution has been said to “require only that the act or omission of a wrongdoer play some part in contributing to the loss”.’^[37]

The differing senses of the phrase ‘material contribution’ can be seen to be at work here. On the one hand, it is suggested that something can make a material contribution to a loss ‘which would have occurred in any event’. On the other hand, the decision in Duke of Buccleuch v Cowan^[38] was in effect that any of the factories concerned played a part in a set of events that led to the total pollution, and the fact that ‘the act of any single factory’ was not necessary does not mean that it was not a ‘but for’ cause of the harm, if that can include ‘a necessary member of a set of events sufficient for the outcome’.

The final reference to Hunt & Hunt Lawyers^[39] is to a decision where it was clear that ‘but for’ causation had been established. The comments of the High Court in that case provide an excellent summary of the orthodox view of ‘material contribution’:

‘The law's recognition that concurrent and successive tortious acts may each be a cause of a plaintiff's loss or damage is reflected in the proposition that a plaintiff must establish that his or her loss or damage is ‘caused or materially contributed to’ by a defendant's wrongful conduct. It is enough for liability that a wrongdoer's conduct be one cause. The relevant inquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss [emphasis added].’^[40]

After this review of High Court decisions, it seems that at least the following propositions are supported:

1. An event E can be a cause of an outcome X if, ‘but for’ E, X would not have happened.

2. An event E₁ can also be a cause of X if E₁ forms part of a set of events, say E₁, E₂ and E₃, without which set, X would not have happened. In this case it is not necessary that E₁ ‘on its own’ caused X. This is the situation covered by Bonnington, where the ‘guilty dust’ formed a part of the total load of dust which caused the disease. It is only required that E₁ make a ‘material’ (meaning ‘non-trivial’) contribution to that set of events.

The statements in the authorities from Bonnington onward, that it is necessary to show that the plaintiff ‘caused or materially contributed’ to the harm suffered by the defendant, cover these propositions.

A MODEST CONCLUDING SUGGESTION

The above definition of ‘material contribution’ does not, in the end, completely explain all judicial references to the concept. Indeed, it has become something of a judicial ‘trope’ to note that the phrase can take on different meanings.^[41]

It would be too much to hope that this article could reconcile the inconsistent definitions of the phrase ‘material contribution’ that have been offered by Australian courts (let alone courts in other common law jurisdictions) in recent years.^[42] I conclude with a more modest suggestion: the analysis of Bonnington offered here shows that the decision itself was not inconsistent with the application of the ‘but for’ test to a set of events which, taken together, were necessary to cause harm. In that sense, the case itself is not inconsistent with the ‘but for’ test. While the presence of the ‘guilty dust’ was not sufficient to have caused the harm, on the facts as explained in the judgment, if it had been removed, the harm would not have occurred as it did. The question is not whether some similar harm might have occurred on some other occasion – the facts found by the Court were that the small quantity of ‘guilty dust’ was a non-trivial component of the actual harm that occurred. In that sense it was a ‘but for’ cause of the harm.

Something that is a cause need not be the sole, or a major, cause.^[43] I suggest that courts resolve to accept in future that this is what Bonnington establishes, and to use the phrase ‘material contribution’ as an example of, not an exception to, the application of ‘but for’ causation.

Associate Professor Neil Foster works at the School of Law and Justice at the University of Newcastle, NSW. EMAIL [e-mail].

This is an edited version of the article, ‘Material contribution in “Bonnington”: Not an exception to “but for” causation’ by Associate Professor Neil Foster, published in University of Western Australia Law Review, Vol. 49, No. 1, 2022, 404–25.

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^[1] [1956] UKHL 1; [1956] AC 613 (Bonnington).

^[2] Ibid, 620.

^[3] [2002] UKHL 22; [2003] 1 AC 32 (Fairchild).

^[4] The use of the word ‘material’ in some discussions of Fairchild, referring to ‘material increase in risk’, may have contributed to some of the confusion in this area. See Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, 316G (Mason P): ‘The law does not equate the situation where the defendant had materially increased the risk of injury with one where he had materially contributed to the injury’. See also Powney v Kerang and District Health [2014] VSCA 221; (2014) 43 VR 506, [58]–[61].

^[5] Commonwealth of Australia, Review of the Law of Negligence: Final Report (2002).

^[6] Support for this reading of s5D(2) can be found in obiter comments in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 240, [57].

^[7] For example, see Chappel v Hart (1998) 195 CLR 232, [23] (McHugh J).

^[8] For review of this tort action see N Foster, ‘The merits of the civil action for breach of statutory duty’, Sydney Law Review, Vol. 33, No. 1, 2011, 67–93; and in relation to workplace injury N Foster and A Apps, ‘The neglected tort – Breach of statutory duty and workplace injuries under the Model Work Health and Safety Law’, Australian Journal of Labour Law, Vol. 28, No. 1, 2015, 57–76.

^[9] Bonnington, above note 1, 620. Lord Reid, having noted he was applying principles developed in negligence cases, said ‘I can find neither reason nor authority for the rule being different where there is breach of a statutory duty.’ See also 624 (Lord Tucker).

^[10] [1946] KB 50.

^[11] Ibid, 55 (Scott LJ); quoted by Lord Reid in Bonnington, above note 1, 619.

^[12] Bonnington, above note 1, 619 (Lord Reid); see also 624 (Lord Tucker) and 625 (Lord Keith).

^[13] Ibid, 620.

^[14] Ibid.

^[15] Ibid, 623.

^[16] See RW Wright, ‘Causation in tort law’, California Law Review, Vol. 73, No. 6, 1985, 1735. For comments adopting this as an alternative ‘factual causation’ test for cases of concurrent causes, see Amaca v Booth [2011] HCA 53; (2011) 283 ALR 461, [48]; Strong v Woolworths Limited [2012] HCA 5; (2012) 285 ALR 420, [28]. The lament of Lord Hoffmann in his essay in R Goldberg (ed), Perspectives on Causation, Hart Publishing, 2011, 3, ‘Why have no judges heard of the NESS (“necessary element of a sufficient set”) test?’, seems unjustified when applied to the High Court of Australia.

^[17] As S Green notes in Causation in Negligence, Hart Publishing, 2015, 103: ‘When we ask whether the claimant’s damage would have occurred but for a defendant’s breach, this can only meaningfully be understood as meaning “But for a defendant’s breach, would the claimant’s damage have occurred when it did?”’

^[18] SH Bailey, ‘“Material contribution” after Williams v The Bermuda Hospitals Board’, Legal Studies, Vol. 38, No. 3, Cambridge University Press, 2018, 411, at 414. See also that author’s previous article on the issues: ‘Causation in negligence: what is a material contribution?’, Legal Studies, Vol. 30, No. 2, Cambridge University Press, 2010, 167–85.

^[19] [2016] UKPC 4; [2016] AC 888 (Williams).

^[20] [2008] EWCA Civ 883; [2009] 1 WLR 1052. Bailey, above note 19, notes that there had been dicta in other English cases suggesting this, but that Bailey seems to have been the only decision where the distinction played a role in the final decision.

^[21] Williams, above note 20, [47]. The decision in John v Central Manchester and Manchester Children's University Hospitals NHS Foundation Trust [2016] EWHC 407 (QB), while at some points affirming Bailey, was in the end based on an orthodox Bonnington analysis, that the negligence of the hospital had been part of a set of events which were a ‘but for’ cause of the harm: see eg [104]–[105].

^[22] [1991] HCA 12; (1991) 171 CLR 506 (March).

^[23] Ibid, 514.

^[24] Ibid, 532.

^[25] [2012] NSWCA 68 (Allianz).

^[26] Ibid, [40].

^[27] Amaca Pty Ltd (Under NSW Administered Winding Up) v Booth [2011] HCA 53; (2011) 246 CLR 36.

^[28] Ibid, [70].

^[29] Ibid, [91].

^[30] [2012] HCA 5; (2012) 285 ALR 420 (Strong).

^[31] Ibid, [78].

^[32] [2010] NSWCA 343.

^[33] Ibid, [11].

^[34] The fuller article provides a more detailed analysis of the comment and its context: N Foster ‘Material contribution in “Bonnington”: Not an exception to “but for” causation’, University of Western Australia Law Review, Vol. 49, No. 1, 2022, 404–25.

^[35] Strong, above note 32, [27].

^[36] [2020] HCA 26.

^[37] Ibid, [152].

^[38] (1866) 5 M 214, the Scottish case referred to. For an analysis see S Steel and D Ibbetson ‘More grief on uncertain causation in tort’ The Cambridge Law Journal, Vol. 70, No. 2, 2011, 451.

^[39] [2013] HCA 10; (2013) 247 CLR 613.

^[40] Ibid, [45].

^[41] See eg East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis [2020] WASCA 147, [597]–[603] and Allianz, above note 25, [40] (Allsop P).

^[42] For a recent overview that disagrees with the conclusions reached here, while conceding that ‘Reasonable minds could and do differ on the point’, see S Steel ‘Material contribution to damage, again’, Law Quarterly Review, Vol. 138, 2022, 545.

[43] See, eg, Garcia v Motor Accidents Authority of NSW [2009] NSWSC 1056, [24] (Rothman J); Coastwide Fabrication and Erection Pty Ltd v Honeysett [2009] NSWCA 134, esp [78]; Peet v NRMA Insurance Ltd [2015] NSWSC 558.