It amounts to saying that 'causation' embodies two fundamentally different concepts. Take an example derived from the facts in the United States Supreme Court decision in. Could he still have sued his employer for exposing him to the possibility of mesothelioma? [1992] HCA 55; (1992) 175 CLR 514. That meaning is necessity which is applied by a test, as lawyers commonly call it, of "but for". Stanford Libraries' official online search tool for books, media, journals, databases, government documents and more. [12] H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985) 11. See March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 531, 535 (McHugh J, noting that it is a rule of policy and not a test; and that its application involves a value judgment). French CJ, Gummow, Heydon, Crennan & Bell JJ. March v Stramare (1991) 171 CLR 506. Stramare. First, I will explain why I believe that the only meaning of causation is "necessity" or, in the common parlance, a test of "but for" causation. [37] Edgington v Fitzmaurice (1885) 29 Ch 459. [1] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 530. Lyne-Pirkis v Jones [1969] 1 WLR 1293, cited March v E. & M. H. Stramare Pty Ltd & Anor (1991) 171 CLR 506; [1991] HCA 12, cited Marks v GIO Australia (1998) 196 CLR 494; [1998] HCA 69, cited Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274; [1988] FCA 413, cited N E Perry Pty Ltd v Judge (2002) 84 SASR 86; [2002] SASC Indeed, almost all of the difficult cases of causation which reach ultimate appellate courts do so because the "sense" of the result is not "common". But it does make the liability questions more transparent. [25] Burrage v United States (2014) 571 US (forthcoming, 27 January 2014). 1.1.1.1. PTY. New South Wales Bar Association v Murphy (2002) 55 NSWLR 23; NSWCA 138. 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. [34] Cf J Stapleton 'Unnecessary causes' (2013) 129 LQR 39, 58-61. Allianz Australia Ltd v Sim (2012) 10 DDCR 325; [2012] NSWCA 68 at [49]–[52]. Professors Hart and Honoré also argued that novus actus interveniens is an example where a necessary event is not a cause. They say that the lawyer, the historian, and the 'plain man would refuse to say that the cause of the fire was the presence of oxygen'. [41] A broad appeal to 'sound policy' and 'justice' is not an explanation for the absence of a causal rule. 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". The court upheld that, in addition to it being reasonably foreseeable that his wife might suffer such an injury, it required that there be sufficient proximity between the plaintiff and the defendant who caused the collision. 1.1.1.3. [14] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516 – 519. [30] [2011] UKSC 12; [2012] 1 AC 245, [99]- [101] (Lord Dyson JSC) [222]-[237] (Lord Collins) [253]-[256] (Lord Kerr) [335] (Lord Phillips) [361] (Lord Brown). [7] In the jurisprudence of constitutional law, 'top down reasoning' has become a term of derision. as Dixon J of the Victorian Supreme Court recently observed with great cogency, the 'common sense' approach is not a legal test. As. The expert evidence was that Mr Banka may have died even if he had not taken the heroin. Lord Hoffmann, later said that the decision he, and the others, had reached failed the test for acceptable law: a rational and justifiable basis to depart from normally applied principles of law. The truck driver’s carelessness was necessary for the speeding driver’s injury, and but for the truck driver’s negligence the speeding driver would not have suffered the losses that stemmed from his injury. In that case, Mr Burrage provided the heroin used by Mr Banka, a long time drug user. [47] Wakelin v London & South Western Railway Co (1886) 12 App Cas 41, 47. What if lack of proof that D caused harm? Secondly, the common sense approach is, in part, based upon a linguistic error. 197. March v E & MH Stramare Pty Ltd [1991] HCA 12 at para 15 per McHugh J for a similar list. 1.1.1.2. The Appellants, Dr. Harvey and Dr. Chen, were their treating physicians. [9] W Gummow 'Conclusion' in S Degeling and J Edelman (eds) Equity in Commercial Law (2005) 515. Studylists correlate. He also relied on statements in a prospectus that were fraudulently made by the directors. There are several problems with the "common sense" test for causation. Other well-known examples where liability for loss is imposed even if the defendant was not necessary for the loss (and, in that sense, a cause) include instances of multiple tortfeasors and cases of deceit. [4] Campbell v The Queen (1981) WAR 286, 290. Amaca Pty Ltd (under NSW administered winding up) v Booth(2011) 283 ALR 461; 86 ALJR 172; [2011] HCA 53 at [47] per French CJ. - 171 CLR 506; 65 ALJR 334; 99 ALR 423; (1991) Aust Torts Reports ¶81–095; 12 MVR 353 Contract Law- Murdoch. Causation of loss is not required because loss is not required. [6] Instead, the common sense approach encourages a pure form of top down reasoning. Top down reasoning describes the process by which the legal scholar or judge develops a theory and then uses it to organise, criticise, accept or reject decided cases. It has to be based upon a rule that enables the tribunal of fact to make a value judgment that in the circumstances legal responsibility did not attach to the defendant even though his or her act or omission was a necessary precondition of the occurrence of the damage. LTD. (1991) 171 CLR 506. Otherwise, Douglas suggests, the focus would shift from the intentional nature of the conduct, however honest and reasonable, to questions of blameworthiness. As Gummow, Hayne and Crennan JJ said in Amaca Pty Ltd v Booth[45]. [40] Standard Chartered Bank v Pakistan Shipping Corporation (Nos 2 & 4) [2003] 1 AC 959. That is, causation requires that the outcome would not have occurred "but for" the event. [41] Standard Chartered Bank v Pakistan Shipping Corporation [2003] 1 AC 959, 967 [16]. But it is not immediately obvious that a wrong was committed in Fairchild. ge using 'bottom up' reasoning starts with the cases and moves from there (usually not very far). Top down reasoning describes the process by which the legal scholar or judge develops a theory and then uses it to organise, criticise, accept or reject decided cases. In contrast, a scholar or jud. March v . The High Court avoided an examination of the extent to which The relevant event was "use of a substance, namely heroin only" and the relevant outcome was "death". when the damage suffered by a plaintiff would not have occurred but for negligence on the part of both the plaintiff and the defendant, a conclusion that the defendant’s negligence was not a cause of the damage cannot be based on logic or be the product of the application of a scientific or philosophical theory of causation. [49] Recounted in L Hoffmann 'Fairchild and after' in A Burrows, D Johnston, and R Zimmermann (eds) Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (2013) 63. In such cases what may be unclear is the extent to which one of these conjunctive causal factors contributed to that state of affairs. This preview shows page 31 - … Thus, it is not an exclusivetest of causation. March v Stramare (1991) 171 CLR 506 This case considered the issue of negligence and the use of the “but for test” and whether or not a car accident was caused by … The various Civil Liability legislation also recognises that there can be possible exceptions to causation. On 3 March 2010 the High Court of Australia delivered a very important decision relevant to causation in lung cancer cases. See also Kavanagh v Akhtar, Imbree v McNeilly, and Tame v NSW. As Gummow J extra-judicially expressed the point, '[t]o proceed on the footing that the law ought to be X, and that the law is therefore X, and any decision of an ultimate appellate court to the contrary is therefore in error, and to teach students accordingly, is unsatisfactory'. This case considered the issue of negligence and the use of the “but for test” and whether or not a car accident was caused by a truck who was parked in the middle of the road. Facts. 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. In R v Kennedy (No 2) [2007] UKHL 38, the accused prepared a syringe of heroin and gave it to the victim. There are two short points of this paper. A re-orientation of causation requiring focus only upon necessity would permit these questions of principle to be exposed, analysed, and, if possible, justified rather than concealed within counter-intuitive assertions of a multifarious notion of 'causation' or within the broad rhetoric of 'common sense'. The recent decision of the High Court of Australia in March v Stramare (1991) 171 CLR 506 was in an action in tort. [23] This is an awkward approach. [51] Subsequent to Fairchild, the question of liability was put differently before the House of Lords: was the employer liable for increasing the chance that the employee would suffer loss.[52]. March v Stramare – This is a value judgement, that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant’s wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff. [2] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515. An event will only ever be a cause of an outcome if the event is necessary for the outcome. This is the "common sense" test of causation. Similarly, the type of damage was patently foreseeable, another point conceded by Apand: see Overseas Tankship (UK) Ltd v April 24, 1991Legal Helpdesk Lawyers. At the start of this paper I mentioned that causation. A better approach would be for point (iii) also to be treated as a legal rule arising independently of the metaphysics of causation. March v Stramare – This is a value judgement, that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant’s wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff. Instead, it is to accept, as Posner explains, that the difficulty with pure bottom up reasoning is that it begs the question of how a legal scholar is able to reason from one case to another without some conception of theory, system, or principle independent of the particular cases.[10]. This case also involved an advancement of the common sense and experience test in assessing causation. There are significant signs that the law is moving towards an acceptance of a necessity test for causation, that is a "but for" test. This is not to endorse reasoning to a result by reference to some preferred social policy. I will skip over this point briefly because it is uncontroversial. [15] An example of this is a taxi driver who is dangerously speeding in breach of conditions of contract with the customer and, had he not been speeding, the taxi would not have been in the position where it was hit by a falling tree. 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. An act cannot be considered an intervening act (which b… In March, Mason CJ gave a number of examples of situations in which he considered that causal questions were affected by factors other than the 'but for' test:[14], (i)  Where a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured but the risk of the accident occurring at that time was no greater. [19] H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985) 42. 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. If causation is not found to exist, should responsibility be imposed in any event? March v E & MH Stramare Pty Ltd [1991] HCA 12 at para 5 per Mason CJ. These situations have been addressed by the proposition stated by Lord Watson in Wakelin v London & South Western Railway Co[47] that it is sufficient that the plaintiff prove that the negligence of the defendant 'caused or materially contributed to the injury'. Although its genesis is much earlier, the "common sense" approach to causation has been well known in Australia since. criteria test (March v Stramare (1991) 171 CLR 506, 533; Alexander v Cambridge Credit Corp Ltd (1987) 9 NSWLR 310, 358) The ‘but for’ test should only be used as a guide and that the ultimate question was whether ‘as a matter of commonsense, the relevant act or omission was a cause’ of the loss (Alexander v Cambridge Credit The 'but for' test fails on two accounts - cases which involve multiple causes and cases in which there is an intervening act. s 51(2)). Lord Hoffmann, later said that the decision he, and the others, had reached failed the test for acceptable law: a rational and justifiable basis to depart from normally applied principles of law. A 'read' is counted each time someone views a publication summary (such as the title, abstract, and list of authors), clicks on a figure, or views or downloads the full-text. [31] In Australia, a case raising similar issues was last month given special leave to appeal to the High Court of Australia.[32]. In the matter of Courtenay House Capital Trading Group Pty Limited (in liquidation) and Courtenay House Pty Limited (in liquidation) (2018) 125 ACSR 149 . Negligence (Lat. 24 April 1991 . Instead, it makes those questions more transparent. The mere exposure of an employee to the possibility of harm (such as from inhaled asbestosis fibres) might not be wrongful. , I will explain why I believe that the only meaning of causation is "necessity" or, in the common parlance, a test of "but for" causation. [8] See the cases discussed in K Mason 'What is wrong with top-down legal reasoning' (2004) 78 ALJ 574. [15] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516. [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. 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