Professional Liability Guide

CHAPTER 7 – CAUSAL PHRASES

The suggestion of a ‘ loose causal connection ’ in Kingsley is similar in many respects to the characterisation of ‘ arising from ’ in Quintano , where Brereton J indicated that ‘ arising from ’ required ‘ some causal connection ’ between the claim and the specified matter. Further, it is arguable that the word ‘ attributable ’ is synonymous with other terms such as ‘ originating ’, which formed the background for the interpretation of the scope of ‘ arising from ’ in Quintano and ‘ arising out of ’ in Walton .

Based upon the above, it appears that ‘ attributable to ’ is most analogous to ‘ arising from ’ and ‘ arising out of ’, as requiring less of a connection than proximate cause.

‘Occasioned by or happening through’ The phrase ‘ occasioned by or happening through ’ is usually found in industrial special risks and other major peril policies (and within those policies, it is often featured within an exclusion). Nonetheless, it is worthwhile considering its scope as a causal phrase that may be encountered in the professional indemnity context. The most prominent Australian decision regarding the interpretation of ‘ occasioned by or happening through ’ was in the case of Switzerland General Insurance Co Ltd v Lebah Products Pty Ltd, where Reynolds AP said: ‘The expression “occasioned by or happening through” provides for a very wide scope of causal relationships and it does not seem to me that the present problem calls for any attempt to define the width or the limits of its meaning.’ 466 The use of the words ‘ very wide ’ by Reynolds AP suggests a scope at least as wide as ‘ arising out of ’ and perhaps as wide as ‘ in connection with ’. However, his Honour’s further comments that Lebah did not provide a vehicle for defining the width of the meaning of the phrase suggests that any attempt to use Lebah as a basis for precisely placing this phrase along the spectrum of remoteness may lead to error. As was the case in Lebah , the phrase ‘ occasioned by ’ was considered as part of a policy exclusion in an industrial special risks policy in Mercantile Mutual Insurance (Aust) v Rowprint Services (Victoria) Pty Ltd . 467 Lebah Products was cited in Rowprint , and while Rowprint did not, in any meaningful way, expand on what was determined on this issue in Lebah , the Court did not appear to take issue with the idea that the phrase ‘occasioned by or happening through’ at least ‘stretched’ the causal association between the potential excluded cause and the loss. Eastern Suburbs Leagues Club Ltd v Royal & Sun Alliance Insurance Australia Ltd 468 held the phrase ‘ occasioned by or happening through ’ implied the existence of a consequential or causal relationship, and not necessarily a direct or proximate cause. The policy in Eastern Suburbs excluded damage ‘ caused by or occasioned through … Flood.’ Based on this wording, it is certainly arguable that any attempt to define the phrase ‘ caused by ’ and proximate cause congruently with ‘ occasioned through ’ would represent a nonsensical tautology.

466 (1982) 2 ANZ Ins Cas 60–498, 77,826. 467 [1998] VSCA 147. 468 [2003] QSC 413.

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