Professional Liability Guide

CHAPTER 7 – CAUSAL PHRASES

It is evident, based on the abovementioned authorities, that the causal phrase ‘ arising out of’ gives rise to a wider degree of remoteness between event and loss/damage than phrases/terms such as ‘ caused by ’ (viz proximate cause) and ‘ for ’.

‘Arising from’ ‘ Arising from ’ has been considered on numerous occasions 454 as consistent in meaning and scope as the conjunctive phrase ‘ arising out of ’. Accordingly (and as is the case with ‘ arising out of ’), the phrase ‘ arising from ’ requires a lesser connection than proximate cause. 455 The relationship between ‘ arising from ’ and ‘ arising out of ’ is perhaps best tied together by the decision of Brereton J in the New South Wales Supreme Court decision of Quintano v B W Rose Pty Ltd 456 in which his Honour made the following comments: ‘the words “arising from” require that there be some causal connection between the claim and the specified matter, but the requisite nexus is satisfied by a less proximate relationship than that required by the phrase “caused by”.’ 457 The comparison of ‘ arising from ’ and proximate cause in Quintano is, therefore, almost identical to the comparison of ‘ arising out of ’ and proximate cause (via the words ‘ caused by ’) in Dickinson . Further, Brereton, J stated that a claim will satisfy the requirement that it ‘ arises from ’ a matter if it ‘originates in, springs from or has its foundation in, that matter’. The usage of the terms ‘ originates in ’ and ‘ springs from ’ is apposite in any analysis of ‘ arising from ’ and ‘ arising out of’ , given the interpretation of the phrase ‘ arising out of’ in Walton v National Employers Mutual General Insurance Association, 458 which also used these terms in defining the scope of ‘ arising out of ’. The decision by Brereton J in Quintano provides further guidance to the interpretation of ‘ arising from ’ (and therefore, by extension, ‘ arising out of ’), given the following conclusion by his Honour: ‘a claim can be said to arise from a matter – at least – if it has a foundation in the matter, so that the matter is one of the underlying facts that, if they exist, together justify the claim.’ 459 In circumstances where ‘ arising from ’ is evidently the same in meaning and scope as ‘ arising out of ’, it is apparent that ‘ arising from ’ requires a lesser connection between claim and loss than proximate cause.

454 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1; Vero Insurance Ltd v Witherow (2004) 21 VAR 413. 455 See Government Insurance Office (NSW) v RJ Green & Lloyd Pty Ltd (1966) 114 CLR 437; State Government Insurance Commission (SA) v Stevens Brothers Pty Ltd (1984) 154 CLR 552; Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500; Lumley General Insurance Ltd v Vintix Pty Ltd (1991) 24 NSWLR 652. 456 [2008] NSWSC 793. 457 Ibid [7]. 458 [1973] 2 NSWLR 73. 459 [2008] NSWSC 793 [8].

87

© Carter Newell 2023