62 in malec v jc hutton 1990 the plaintiff malec

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Unformatted text preview: ture or would have happened in the future if something had not happened in the past, the court must m a k e an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.62 In Malec v J.C. Hutton (1990) the plaintiff, Malec, contracted a disease, brucellosis, while employed at the defendant's meatworks. A neurotic condition known to be caused by the disease supervened between the time of injury and the trial. The High Court of Australia concluded that there was a chance that the plaintiff would have contracted the neurotic condition anyway, and reduced the amount it awarded accordingly. The court equated hypothetical situations of the past with unknowable future events, differentiat the historical 'fact' from both future speculation and hypothetical past: T he fact that a plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. B y contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: w hat would he have been able to earn if he had not been tortiously injured? T o answer that question, the court must speculate to some extent. A s the hypothesis is false - for the plaintiff has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur.64 62 Mallet vMcMonagle [1970] A .C. 166 at 176 per Lord Diplock; Malec v J.C Hutton Pty. Ltd. [1990] 169 C.L.R. 6 38 at 640 per Brennan and D a w s o n JJ. 63 Malec v J.C. Hutton Pty. Ltd. [1990] 169 C.L.R. 638. 217 Previously, the House of Lords, in McGhee v National Coal Boarcts (1973) had deprecated the strict assignment of probability to events of the past, and commented the use of percentage risk assignments in the placement of blame for an event: It is known that some factors materially increase the risk and others materially decrease it. Some no doubt are peripheral. Suppose, however, it were otherwise and it could be proved that m e n engaged in a particular industrial process would be exposed to a 52 per cent, risk of contracting dermatitis even w h e n proper washing facilities were provided. Suppose it could also be proved that that risk would be increased to say, 90 percent, w h e n such facilities were not provided. It would follow that . . the employer w h o negligently failed to provide the proper facilities would . escape from any liability to an employee w h o contracted dermatitis notwithstanding that the employers had increased the risk from 52 per cent, to 90 per cent. T he negligence would not be a cause of the dermatitis because even with proper washing facilities, i.e. without the negligence, it would still h ave been more likely than not that the employee would have contracted the disease therisko f injury then being 52 per cent. If, h owever, you substitute 48 per cent, for 52 per cent. the employer could not escape liability, not even if h e had increased theriskto say, only 60 per cent. Clearly such results would not make sense; nor would they, in m y view, accord with the c o m m o n law.66 Legal reticence by English courts to embrace probabilities has not been followed in Australia. In contrast to the English judicial position, Australian courts will attemp assign a value to events within its perception of what likelihood should be assigned t hypothetical event: If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability m a y be very high - 99.9 per cent - or very l ow - 0.1 per cent. B ut unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it w ould be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring.67 [1990] 1 69C.L.R.638at640. [1973] 1 W.L.R. 1. [1973] 1 W.L.R. 1 at 12. 218 T he mathematical approach to the probability of an event occurrence was not favoured by Brennan and Dawson JJ. in Malec, for "[d]amages founded on hypothetical evaluations defy precise calculations". This statement is both a reminder of the stark contrast in the appro...
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