, 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. involves nothing more or less than the application of a "but for" test of causation’. This is not to endorse reasoning to a result by reference to some preferred social policy. Iraqi Airways argued that the planes would have been lost to Kuwaiti Airways even if they had not been converted by Iraqi Airways. 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. 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. A tort, in common law jurisdiction, is a civil wrong (other than breach of contract) that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. March v . In the primary judgment, the trial judge apportioned liability as 70% (appellant) and 30% (respondents). Causation is a question of fact to be determined with reference to common sense and experience. The various Civil Liability legislation also recognises that there can be possible exceptions to causation. March v Stramare (1991) 171 CLR 506. Contract Exam Notes - Summary - lecture 1 - 15 Chapter 2: A Conceptual Framework_Solutions Remedies Breach - Summary Contract Law Contributory Negligence Discharge by Agreement. I will also explain reasons why judges have been reluctant to embrace this meaning. An act cannot be considered an intervening act (which b… Negligence—Causation—Duty of care—Injury reasonably foreseeable—Successive negligent acts by different persons—Whether first negligent actor exonerated by intervening negligent act—Apportionment of liability—Wrongs Act 1936 (S.A.), s. 27a(3). [26] Performance Cars Ltd v Abraham [1962] 1 QB 33. Hobson v Taylor [2019] QCA 265 . The House of Lords held that Iraqi Airways was liable to pay damages. One possible answer, although not without difficulty, is provided by Dr Douglas. Contract Law- Murdoch. Negligence – Causation – Duty of care – Injury reasonably foreseeable – Successive negligent acts by different persons – Whether first negligent … FC established if P cannot prove exact cause of harm, but can show D’s breach materially increased risk of harm Alternatively, as John Stuart Mill put it, the 'whole cause' includes all necessary conditions. As. Baker v Willoughby [1970] AC 467. 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. The leading authority in this area is March v Stramare: 1. Each of the examples I have given so far involves departure from a necessity test of causation for reasons which have been well accepted in the law even if those reasons might be debatable in theory. All of them need to be justified. Are people always incapable of weighing relative contributions to their decisions? Negligence . For instance, in Gould v Vaggelas,[39] Brennan CJ spoke of the need for a misrepresentation to be 'one of the real inducements to the plaintiff to do whatever caused his loss'. [24] [2013] HCA 19; (2013) 250 CLR 375 [16]. [13] J S Mill A System of Logic, Ratiocinative and Inductive (1970, Book 3) 214-218. 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 same panel of the Rolls Royce had been previously damaged by another wrongdoer who was liable to pay for the repairs. That characterisation process involves normative questions. [9], I should emphasise that, unlike some theorists, I do not say that top down reasoning is always illegitimate. PTY. Contributory negligence - If the plaintiff is negligent this may satisfy the court that the ‘chain … In effect, he advised that the Court should apply the common law common sense approach to causation referred to by the High Court in March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. The patient, if properly warned, would have had the operation at another time, probably with a … April 24, 1991Legal Helpdesk Lawyers. The Kuwaiti planes had been brought to Iraq by Iraqi armed forces after the 1990 invasion of Kuwait. The 'but for' test (March v Stramare) Mere probability of harm may be sufficent to prove causation (Adeels Palace v Moudarak; Amaca v Ellis) When evidence cannot conclude omission but high probabliy can (Strong v Woolworths) Interveing act must be voluntary and not RF to break COC. [31] J Varuhas ‘The Concept of "Vindication" in the Law of Torts: Rights, Interests and Damages’ (2014) 34 OJLS 253, 280. 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". The House of Lords reached the same conclusion as the Romans and held all employers fully liable in solidum. [48] Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32. Orix Australia Corporation Ltd v Moody Kendall & Partners Pty Ltd [2005] NSWSC 1209 This approach to causation accords with linguistic use. Amaca Pty Limited v Ellis; The State of South Australia v Ellis; Millennium Inorganic Chemicals Limited v Ellis [2010] HCA 5 (3 March 2010) Introduction. There are several problems with the "common sense" test for causation. Back to article 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. [27] They attracted ferocious academic defence. They are as follows: Since causation is concerned with a relationship between "event" and "response", how do we characterise the relevant "event" and the relevant "response"? The House of Lords was asked if any employer 'caused' the mesothelioma. 1.1. [40] Standard Chartered Bank v Pakistan Shipping Corporation (Nos 2 & 4) [2003] 1 AC 959. This is the "common sense" test of causation. MBF Australia v Malouf [2008] NSWCA 214 . In such cases, a value judgment of common senseand policy considerations are needed to supplement the 'but for test'. One such case came before the House of Lords which involved a situation where multiple employers had exposed an employee to asbestos. [14] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516 – 519. [35] L Hoffmann 'Causation' in R Goldberg (ed) Perspectives on Causation (2011) 6 - 7. New South Wales Bar Association v Murphy (2002) 55 NSWLR 23; NSWCA 138. 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. [25] That case concerned a statute which contained the phrase 'death …resulted from the use of th[at] substance'. An example they gave is where a fire has broken out. March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 516 (Mason CJ), 523 (Deane J). [2], The same "common sense" approach is taken in criminal law. Mason CJ: 1.1.1. For some time, these damages were described as "vindicatory damages". Plaintiff’s contributory negligence does not cut off defendant’s liability. [37] Edgington v Fitzmaurice (1885) 29 Ch 459. About Court fees including exemptions, deferral & refunds, Under Federal Court Rules 2011, Schedule 3, Pre-judgment & post-judgment interest rates. 3165 March v Stramare Pty Ltd 1991 171 CLR 505 2710 33185 Mardorf Peach Co Ltd. 3165 march v stramare pty ltd 1991 171 clr 505 2710. [5] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378, 387 (Mason CJ) 411 - 412 (Deane & Dawson JJ) 441 (Toohey & Gaudron JJ). (3) If causation is not found to exist, should responsibility be imposed in any event? The Kuwaiti planes were later destroyed by the coalition bombing of Mosul. Although their Honours all agreed with McHugh J that the truck driver was liable, Mason CJ preferred. [9] W Gummow 'Conclusion' in S Degeling and J Edelman (eds) Equity in Commercial Law (2005) 515. [20] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516. On 3 March 2010 the High Court of Australia delivered a very important decision relevant to causation in lung cancer cases. [15] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516. 1.1. Instead, it makes those questions more transparent. Applicable common law: Chapman: Original tort feaser’s (defendant) liability is preserved where original tort feaser foreseeably exposed the plaintiff to inadvertent negligence of a 3rd party (or plaintiff’s own inadvertence). Allianz Australia Ltd v Sim (2012) 10 DDCR 325; [2012] NSWCA 68 at [49]–[52]. Their Honours pointed out that in Betts, The High Court avoided an examination of the extent to which However, this approach by McHugh J did not command the support of the other members of the High Court. [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. It amounts to saying that 'causation' embodies two fundamentally different concepts. The argument failed. [34] Hence, it was argued, Iraqi Airways should not be liable to pay damages. By contrast, section 5D(1) seemingly did not allow for that approach. s 51(2)). It can include intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy, and many other things. As Gummow, Hayne and Crennan JJ said in Amaca Pty Ltd v Booth[45]. March v Stramare (1991) 171 CLR 506 Harvey v PD (2004) 59 NSWLR 639 The Respondent, PD, was a patient of the Alpha Medical Centre (the Centre) from October 1997 until February On 16 November 1998, she participated in a joint medical consultation with her FH. 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. 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. I start with the leading causation decision of the High Court of Australia in relation to the law of torts. On the other hand, outside the law of negligence it has sometimes been possible to characterise the relevant outcome as the injury rather than the loss that has been suffered and to find that a substantial award is required to vindicate the plaintiff’s rights even if no loss has been suffered. negligentia) is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. Another difference between D and Fairchild is that in Fairchild the House of Lords was asked whether each defendant was liable for all losses arising from mesothelioma. [11] H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985). Take an example derived from the facts in the United States Supreme Court decision in. Although its genesis is much earlier, the "common sense" approach to causati… On 3 March 2010 the High Court of Australia delivered a very important decision relevant to causation in lung cancer cases. That meaning is necessity which is applied by a test, as lawyers commonly call it, of "but for". [43] Smith v Kay (1859) 7 HLC 750, 759; (1859) 11 ER 299, 303. The focus of the enquiry was on whether the employers should all be liable for the full loss caused by the mesothelioma where the evidence accepted was that the mesothelioma had been caused by a single 'guilty' fibre. But then the same concept of causation permits an outcome to be treats as caused by an event even if the relevant outcome would have been exactly the same without the event. Although the legislation also includes 'scope of liability for consequences' under the rubric of causation, it is clear that this is a separate enquiry from the necessity enquiry. Although its genesis is much earlier, the "common sense" approach to causation has been well known in Australia since March v Stramare. High Court decision of March v Stramare (E & MH) Pty Limited [1991] HCA 12. Could he still have sued his employer for exposing him to the possibility of mesothelioma? April 24, 1991Legal Helpdesk Lawyers. A better answer might be to say that the law's concern with individual autonomy is such that a fraudster will be liable for losses that he or she has caused, or losses to which he or she has contributed. [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. 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'. Instead, the common sense approach is taken in criminal law damages '' liability for Consequences ' 2003. Nswlr 23 ; NSWCA 138 ‘ chain … March v Stramare ( E MH... 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