In some cases, liability is imposed despite the absence of causation of loss. Hudson, [103] 3 ... causation or to more specific criteria such as ‘novus actus interveniens’, ‘sole cause’ or ‘real cause’, all of which conceal unexpressed value judgments.’ When s.5D(1) and (2) are read together, it is … There are, however, cases at the margins where liability is imposed despite the usual requirement for a causation test, and despite the absence even of any proof of material contribution. Prior to the CLA, March v Stramare was the leading common law case on causation. In the language used by the High Court of Australia, the test is one of causation or material contribution. One difficult issue for causation is the characterisation of the event and the outcome that must be causally linked. View source for March v Stramare ← March v Stramare. It will not be a NAI when the original act generated the risk of the intervening act – March v Stramare; Novus actus interveniens can also be argued in contract – Alexander v Cambridge Credit Corporation The market downturn was the intervening act. [40] Standard Chartered Bank v Pakistan Shipping Corporation (Nos 2 & 4) [2003] 1 AC 959. [26]In that case, Mr Abraham was found to have carelessly driven into the Rolls Royce owned by Performance Cars, he infringed the rights of Performance Cars. The mere exposure of an employee to the possibility of harm (such as from inhaled asbestosis fibres) might not be wrongful. Professor Stapleton considers that point (iii) is an example of causation, although one which does not require necessity. The negligence of a rescuing party is not a novus actus (i.e. (2) If causation is found to exist, what principles should be applied to determine whether responsibility should be imposed? March v E & MH Stramare Pty Ltd [1991] HCA 12 at para 15 per McHugh J for a similar list. contribution arise only if a connection between Mr Cotton’s inhaling asbestos and his developing cancer was established.! The first is to suggest that causation has only one meaning. o Causation: ‘but for’ test (March v Stramare) – would the plaintiff have suffered the harm but for the defendant’s negligence § Suggestion (by Mason J in HC) that the causation test be supplemented by ‘common sense’ (to replace remoteness test) – however, this is arguably an unsophisticated, vague and conceptually empty suggestion Indeed, the "common sense" approach is not actually "common" sense. Are people always incapable of weighing relative contributions to their decisions? This amounts to a “necessary condition” of the harm under s 5D(1)(a) of the Civil Liability Act 2002 (NSW). I need to look through the multiple causal factors of each party. Hudson, [103] 3 But neither plaintiff proved factual causation by pointing to possibilities that might have eventuated if circumstances had been different.’ 6 Accordingly, the High Court held that the ‘but for’ test of factual causation was not established in this case. This decision posed a test for causation which I respectfully submit may be in decline. [10] R Posner 'Legal Reasoning from the Top Down and the Bottom Up: The Question of Unenumerated Constitutional rights' (1992) 59 Uni Chicago Law Rev 433, 436. Separate from the enquiry into whether a person is a wrongdoer is the enquiry into whether the event which violated another's rights caused loss. Facts. Select a state registry to view the current court list: Select a state registry to view the current court list. When the appeal books were received, Lord Hoffmann went in to Lord Rodger's chambers to speak with him about the Roman debate on this question. When Justice Digby kindly invited me to speak on causation I had just concluded an article, which was published earlier this year, entitled "Unnecessary causation" (2015) 89 Australian Law Journal 1. March v Stramare (1991) 105 CLR 506, 509 (Mason CJ); Cf National Insurance CO Ltri v Espagne (1960) 105 CLR 568,592 (Windeyer J). [25] Burrage v United States (2014) 571 US (forthcoming, 27 January 2014). [39] Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215, 251. Facts. (3) If causation is not found to exist, should responsibility be imposed in any event? An instructive discussion is contained in the judgment of Mason CJ dealing with novus actus interveniens: ibid at 517-518, omitting most references: In 2012, I was listed to sit on an appeal where this question had been raised. Another example is the tort of deceit. 6 . o! If the relevant question for causation was whether Mr Abraham’s conduct had caused denting of the Rolls Royce panel then the answer is "yes". 9 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332. ... March v E & M H Stramare Pty Ltd (1991) 171 CLR 506. Causation is the "causal relationship between conduct and result". , the reasons why the common sense test was adopted in, (ii)  Where a superseding cause, sometimes described as a, Professors Hart and Honoré also argued that, There is a simple and clear answer for why Mason CJ's points (i) and (ii) do not present problems for the 'but for' test. That sense is necessity. Conclusions: ! [36] He argues that by abandoning the requirement of causation (but for) in cases of strict liability torts prevents strict liability from becoming meaningless. He also relied on statements in a prospectus that were fraudulently made by the directors. [52] Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572. "[30] That decision has been criticised by one academic who argues that it confused "the nature of the wrong, effectively treating the illegality of the detention as the wrong" rather than the violation of a right to liberty. In contrast, a scholar or jud. The similarity between the two classes of case is that the plaintiff can’t prove that but for the wrong the plaintiff would not have suffered the loss. By conflating these matters in point (iii) within causation, transparency is also lost. Mr Banka died from a drug overdose after an extended drug binge including the heroin. For instance, liability might be denied because there is no duty. Professors Hart and Honoré also argued that novus actus interveniens is an example where a necessary event is not a cause. I0 Craven, above n 3,100. l1 H L A Hart and T Honore, Causation in the Law (2nd Ed. Iraqi Airways argued that the planes would have been lost to Kuwaiti Airways even if they had not been converted by Iraqi Airways. Although this looks like an adoption of the two part 'but for'/'common sense' test outlined by Mason CJ in March v Stramare, it only applies to cases where negligence was not established. The Plaintiff [March] was driving (speeding and drunk) and hit into their truck, suffering physical damages. The second point is to emphasise that this apparently simple test is not a simple solvent for the question of whether liability should be imposed. Papers of seminars & other events held in the Federal Court, Including Welcome and Farewell ceremonies, About the judgments collection, including FAQs, Select alerts based on National Practice Area. The same panel of the Rolls Royce had been previously damaged by another wrongdoer who was liable to pay for the repairs. Page 519 The Wagon Mound (No 1) (1961) - Foresee-ability of damage. Loss is essential to a claim for negligence so Mr Abraham was not liable to pay damages for a car that had previously been damaged. If causation is found to exist, what principles should be applied to determine whether responsibility should be imposed? In many cases causation means that an event must be necessary for an outcome. 20. [50] I do not venture a conclusion here to the difficult question of causation that arose because that question has not yet been finally resolved in Australia. Negligence . [20], There is a simple and clear answer for why Mason CJ's points (i) and (ii) do not present problems for the 'but for' test. For some time, these damages were described as "vindicatory damages". Lamb v London Borough of Camden [1981] QB 625 The concept of 'common sense' causation arguably would not have survived without the powerful support of Professors Hart and Honoré. [17] So, for instance, in M'Kew v Holland[18] a defendant's negligence injured the plaintiff's leg but the plaintiff's subsequent action in attempting to descend a steep staircase without assistance or a handrail was held to 'break the chain of causation'. 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,[46] for example, where the development of a particular medical condition was the result of multiple conjunctive causal factors. The second observation is to reiterate Lord Hoffmann's most powerful point: if a common law claim is brought for loss suffered that was caused by wrongdoing, then before a court departs from the requirement that the wrongdoing was necessary for the loss (and hence abolishes or replaces the rules of causation) there should be a rational and justifiable basis in principle for doing so. The novus actus criterion, that is, cannot reliably yield sensible outcomes on a consistent basis.24 The present state of the law of causation, certainly in the torts context, is that ... 20 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 522 (Deane J); Medlin v State Government • ‘Alinemarkingtheboundaryofthedamageforwhicha) tortfeasoris)liable)in)negligence)may)be)drawn)either because)the)relevantinjury)is)notreasonably)foreseeable)or Dr Cherry in Chapman v Hearse). [11] H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985). There is no longer any need to explain why a person should be responsible for an event that would have happened anyway despite his involvement. They suggested that 'the causal explanation of the particular occurrence is brought to a stop when the death has been explained by the deliberate act'. The similarity between the two classes of case is that the plaintiff can’t prove that but for the wrong the plaintiff would not have suffered the loss. The Kuwaiti planes had been brought to Iraq by Iraqi armed forces after the 1990 invasion of Kuwait. On that approach, Mr Banka's death had not been caused by the use of the heroin. [4] Campbell v The Queen (1981) WAR 286, 290. Chapman v Hearse (1961) 106 CLR 112 Chapman argued that Hearse’s actions in hitting Dr Cherry constituted a novus actus interveniens, and thus, he no longer owed a duty of care, as the causal connection was broken. Loss is essential to a claim for negligence so Mr Abraham was not liable to pay damages for a car that had previously been damaged. [7] In the jurisprudence of constitutional law, 'top down reasoning' has become a term of derision. [21] Professor Stapleton explains, footnoting March, that courts unfortunately conflate questions that are concerned with the scope of liability for consequences with questions of causation.[22]. 7 March v Stramare. All of them need to be justified. As Gummow, Hayne and Crennan JJ said in Amaca Pty Ltd v Booth[45]. By identifying the single but-for causal rule, courts are forced to confront the reasons for imposition of liability for an event even if the event was not necessary for the outcome. The need to protect autonomy must be the factor that justifies the latter extension. You do not have permission to edit this page, for the following reasons: The action you have requested is limited to users in the group: Users. In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. necessary condition) of Mr Cotton’s cancer. Haynes v Harwood [1935] 1 KB 146 The discussion of the quantum of liability was different. [45] Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36, 62 [70]. One difference is that under Roman law, the striking of the slave infringed the rights of the slave owner or, as the Romans would have expressed it, gave rise to an action. 10.2.11. 469-81 [13.05 -13.40]. It is still an important starting point for considering concepts such as necessary condition ûthe but for test, its limitations, novus actus interveniens and the relationship between remoteness and causation. [8] A "common sense" approach appeals to intuition. In March v Stramare, an intoxicated and speeding driver collided with a truck which was parked at night, with hazard lights, in the centre lane of a six-lane road. NAI Subsequent Negligent conduct by P March v Stramare (1991) 171 CLR 506 D negligent in parking his car in the middle of the road - it was reasonably foreseeable ‘in the ordinary course of things’ that drivers, drunk or sober might drive into the back of it Where the subsequent event is the very thing that the D should have taken reasonable care to guard against then the subsequent event is not regarded as a … [13] J S Mill A System of Logic, Ratiocinative and Inductive (1970, Book 3) 214-218. My central thesis is that the metaphysical concept of causation (the core causation enquiry is metaphysical, not factual) should be understood only in one sense. It is more probable than not that smoking was a cause (in the sense that it was a necessary condition) of Mr Cotton’s cancer.! Could he still have sued his employer for exposing him to the possibility of mesothelioma? [35] L Hoffmann 'Causation' in R Goldberg (ed) Perspectives on Causation (2011) 6 - 7. A party’s negligence may be deemed “spent” as a causative factor in the harm done, due to the intervention of an overriding and unforeseen circumstance. He assumed that the reference to "that substance" was a reference to the heroin only. 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