The argument failed. illustrated this idea by reference to concepts of top down and bottom up reasoning. [4] Campbell v The Queen (1981) WAR 286, 290. 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. This decision posed a test for causation which I respectfully submit may be in decline. Using the “common sense” test of causation of March v Stramare (E & M H) Pty Ltd, the High Court held that the patient’s harm was caused by the doctor’s failure to warn of risk rather than a failure with the actual care provided. As Gummow, Hayne and Crennan JJ said in Amaca Pty Ltd v Booth[45]. Although different concepts can apply in different cases to deny liability there are a number of circumstances in which liability is denied even though causation of loss exists. March v E & MH Stramare Pty Ltd [1991] HCA 12 at para 15 per McHugh J for a similar list. On 3 March 2010 the High Court of Australia delivered a very important decision relevant to causation in lung cancer cases. Like many other examples considered below, it requires justification for why causation is either replaced by a different rule, or disregarded. 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. The House of Lords reached the same conclusion as the Romans and held all employers fully liable in solidum. Student Law Notes is the perfect resource for Law Students on the go! The High Court avoided an examination of the extent to which The recent decision of the High Court of Australia in March v Stramare (1991) 171 CLR 506 was in an action in tort. The Appellants, Dr. Harvey and Dr. Chen, were their treating physicians. 1.1.1.3. Here there was sufficient causal proximity. [38] This approach has been applied on many occasions. 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. [8] See the cases discussed in K Mason 'What is wrong with top-down legal reasoning' (2004) 78 ALJ 574. The Kuwaiti planes had been brought to Iraq by Iraqi armed forces after the 1990 invasion of Kuwait. 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. In such cases what may be unclear is the extent to which one of these conjunctive causal factors contributed to that state of affairs. [25] That case concerned a statute which contained the phrase 'death …resulted from the use of th[at] substance'. This case also involved an advancement of the common sense and experience test in assessing causation. Instead, it makes those questions more transparent. [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]. The earliest cases that justified the absence of a causal rule did so on the basis that it was impossible to enquire into contributions to a person's mind: '[w]ho can say that the untrue statement may not have been precisely that which turned the scale in the mind of the party to whom it was addressed? For instance, liability might be denied because there is no duty. The concept of 'common sense' causation arguably would not have survived without the powerful support of Professors Hart and Honoré. An example of multiple tortfeasors is Kuwait Airways Corporation. the Sparnons: see March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Medlin v State Government Insurance Commission (1 995) 182 CLR 1. 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. The brilliant Alan Rodger instantly recalled Digest 9.2.11.2 where Ulpian, quoting Julian, recounts the solution to such a scenario under chapter 1 of the Lex Aquilia: if several people strike a slave and one cannot tell whose blow killed him, all are liable.[49]. 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 mere exposure of an employee to the possibility of harm (such as from inhaled asbestosis fibres) might not be wrongful. Similarly, the type of damage was patently foreseeable, another point conceded by Apand: see Overseas Tankship (UK) Ltd v Professors Hart and Honoré also argued that novus actus interveniens is an example where a necessary event is not a cause. The underlying theme for today’s conference is causation. 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. If causation is not found to exist, should responsibility be imposed in any event? The decision should remind lower courts that the common law position in March v. E & MH Stramare Pty Limited that causation is “ultimately a matter of common sense” must be viewed subject to … In Chappel v Hart, the High Court upheld the decision of the Supreme Court of New South Wales that a surgeon was liable for failing to warn a patient of a previously unreported complication of a procedure. Thus, it is not an exclusivetest of causation. That statute described an act of an accused person 'causing the death charged' committed in particular circumstances. [39] Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215, 251. The various Civil Liability legislation also recognises that there can be possible exceptions to causation. About Court fees including exemptions, deferral & refunds, Under Federal Court Rules 2011, Schedule 3, Pre-judgment & post-judgment interest rates. 'But for' the wrongdoing of Iraqi Airways, the loss of the planes would still have occurred as a result of the prior wrongful act of conversion by the State of Iraq. as Dixon J of the Victorian Supreme Court recently observed with great cogency, the 'common sense' approach is not a legal test. That characterisation process involves normative questions. 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 wrong has occurred but it is not necessary for the plaintiff to prove that the misrepresentation caused the loss that was suffered. Obvious examples are instances where a defendant owes a debt to a plaintiff. Community Welfare (1992) 176 CLR 408. Causation is a question of fact to be determined with reference to common sense and experience. The common law struggled in formulating a definitive test for causation. [27] Eg Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328. Causation. [48] No employment could be proved to have been necessary for the employee's subsequent mesothelioma. Contract Law- Murdoch. The leading authority in this area is March v Stramare: 1. But it is not immediately obvious that a wrong was committed in Fairchild. The House of Lords held that Iraqi Airways was liable to pay damages. 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. March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 516 (Mason CJ), 523 (Deane J). 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). The Court is concerned with common law notions of causation. Mr Abraham was lucky. In Royall v The Queen,[3] a majority of the High Court considered the meaning of causation in the context of s 18(1)(a) of the Crimes Act 1900 (NSW). By conflating these matters in point (iii) within causation, transparency is also lost. Suppose the plaintiff in Edgington had given evidence that although the fraudulent statements by the defendants were a part of his decision making process, he would have lent the money in any event because of his belief that it was secured by a charge'. It suggests that the judge ought to reason downwards from the intuitive sense of a conclusion. [24] [2013] HCA 19; (2013) 250 CLR 375 [16]. FC established if P cannot prove exact cause of harm, but can show D’s breach materially increased risk of harm In the matter of Courtenay House Capital Trading Group Pty Limited (in liquidation) and Courtenay House Pty Limited (in liquidation) (2018) 125 ACSR 149 . I & L Securities v HTW Val uers (2002) 210 CLR 109, at [56] per Justices Gaudron, Gummow and Hayne. 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. [42] Reynell v Sprye (1852) 1 De GM & G 660, 708-709; (1852) 42 ER 710, 728 - 729. ACQ PL v Cook; Aircair Moree PL v Cook [2009] HCA 28. [28] But the contrary result was reached by the United Kingdom Supreme Court in Lumba v Secretary of State for the Home Department. [37] Edgington v Fitzmaurice (1885) 29 Ch 459. ON THIS DAY in 1991, the High Court of Australia delivered March v Stramare (E & MH) Pty Ltd[1991] HCA 12; (1991) 171 CLR 506; (1991) 9 BCL 215 (24 April 1991). In such cases, a value judgment of common senseand policy considerations are needed to supplement the 'but for test'. The complainant, Mr Baker, was a pedestrian who had been knocked down by the defendant driving a car in September 1964. FC can still be established if appropriate case in accordance with established principles – court to consider if liability should be imposed (WA. Lord Hoffmann, who sat on the court, later described the decision of the House of Lords as being based on the notion that 'it was not necessary that the conversion should have caused the loss. One difficult issue for causation is the characterisation of the event and the outcome that must be causally linked. High Court decision of March v Stramare (E & MH) Pty Limited [1991] HCA 12. The patient, if properly warned, would have had the operation at another time, probably with a … In R v Kennedy (No 2) [2007] UKHL 38, the accused prepared a syringe of heroin and gave it to the victim. First, as Dixon J of the Victorian Supreme Court recently observed with great cogency, the 'common sense' approach is not a legal test. March v . The House of Lords was asked if any employer 'caused' the mesothelioma. The victim injected himself, returning the syringe but died shortly after. Plaintiff’s contributory negligence does not cut off defendant’s liability. [34] Hence, it was argued, Iraqi Airways should not be liable to pay damages. But it does make the liability questions more transparent. 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. The recent decision of the High Court of Australia in March v Stramare (1991) 171 CLR 506 was in an action in tort. 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". 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. See also J Stapleton ‘Occam’s Razor Reveals an Orthodox Basis for Chester v Afshar’ (2006) 122 LQR 426, 439 - 440. The Roads and Traffic Authority of New South Wales v O’Reilly & Ors [2009] NSWSC 134; Schedule to the Criminal Code 1995 (Cth) the extent to which the law balances the offenders and issues of compliance and non-compliance in regard to criminal law causation Using cases such as R v Blaue, March v Stramare 1991 (internet search), explain causation. [44] It may be that this rule is now too well established to be disturbed. Law of Tort – Negligence – Causation – Remoteness of Damage – Damages – Novus Actus Interveniens. 1.1. 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. 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. Mr Banka died from a drug overdose after an extended drug binge including the heroin. Baker v Willoughby [1970] AC 467. The High Court unanimously held that the truck driver and his employer were liable. The expert evidence was that Mr Banka may have died even if he had not taken the heroin. Stramare). [9] W Gummow 'Conclusion' in S Degeling and J Edelman (eds) Equity in Commercial Law (2005) 515. March v Stramare had adopted an approach to causation that was ‘ultimately a matter of common sense’, involving an element of value judgment. 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. The need to protect autonomy must be the factor that justifies the latter extension. s 51(2)). [31] In Australia, a case raising similar issues was last month given special leave to appeal to the High Court of Australia.[32]. [36] S Douglas Liability for Wrongful Interferences with Chattels (2011) 203 – 205. March v Stramare that these tests were both limited, and that a common-sense-based analysis of causation is necessary to offset the rigidity of the tests aforementioned. [21] See, for instance, J Stapleton 'Cause-in-Fact and the Scope of Liability for Consequences' (2003) 119 LQR 388. [16], (ii)  Where a superseding cause, sometimes described as a novus actus interveniens, is said to 'break the chain of causation' which would otherwise have resulted from an earlier wrongful act. [8] A "common sense" approach appeals to intuition. The complainant, Mr Baker, was a pedestrian who had been knocked down by the defendant driving a car in September 1964. Decisions In holding that the respondent's negligent preparation and provision of a false section 32 statement did not cause the whole of the appellant's loss the Court did not apply, alternatively, misconceived and misapplied the principles stated in March v. E & MH Stramare Pty Limited (1991) 171 CLR 506. Although their Honours all agreed with McHugh J that the truck driver was liable, Mason CJ preferred. See also Kavanagh v Akhtar, Imbree v McNeilly, and Tame v NSW. [48] Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32. Contributory negligence - If the plaintiff is negligent this may satisfy the court that the ‘chain … Studylists correlate. Iraqi Airways argued that the planes would have been lost to Kuwaiti Airways even if they had not been converted by Iraqi Airways. 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. Hobson v Taylor [2019] QCA 265 . Are people always incapable of weighing relative contributions to their decisions? [2], The same "common sense" approach is taken in criminal law. 24 April 1991 . March v Stramare (E & M H) Pty Ltd [1991] HCA 12. a "common sense" approach to the issue of causation in preference to the "but for" test. 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. Facts. [5] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378, 387 (Mason CJ) 411 - 412 (Deane & Dawson JJ) 441 (Toohey & Gaudron JJ). [41] A broad appeal to 'sound policy' and 'justice' is not an explanation for the absence of a causal rule. 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". Instead, it makes those questions more transparent. Facts. 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. Select a state registry to view the current court list: Select a state registry to view the current court list. [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). In March v Stramare itself, the sense of the result was not common between the High Court and the Full Court of the Supreme Court of South Australia. LTD. (1991) 171 CLR 506. Mr Abraham was found to have carelessly driven into the Rolls Royce owned by Performance Cars, he infringed the rights of Performance Cars. 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. 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. March v Stramare Pty Ltd (1990-1991) 171 CLR 506 at page 531. [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. An example they gave is where a fire has broken out. In a widely read work, they argued that a common sense approach to causation could be deconstructed, although conceding that there would be a penumbra of uncertainty. Alternatively, as John Stuart Mill put it, the 'whole cause' includes all necessary conditions. [35] L Hoffmann 'Causation' in R Goldberg (ed) Perspectives on Causation (2011) 6 - 7. 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. Judge Posner famously illustrated this idea by reference to concepts of top down and bottom up reasoning. Mr Abraham was lucky. 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"? [1] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 530. Listen to casenotes from legal cases from your University course from your computer, ipad or phone. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. School University of New South Wales; Course Title LAW CONTRACT; Uploaded By niranjanreghunath14. March v . Each of the lawyer, the historian, and the 'plain man', aiming for some precision, would surely have no difficult in saying that the causes of the fire were holding a lit match to paper in the presence of oxygen. 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. [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'. It is an example where causation is unnecessary. 1.1.1.2. , 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. Giving the opinion of the court, Scalia J explained that the expression 'results from' should bear the ordinary causal meaning of 'but for' causation. April 24, 1991Legal Helpdesk Lawyers. One possible answer, although not without difficulty, is provided by Dr Douglas. In R v Kennedy (No 2) [2007] UKHL 38, the accused prepared a syringe of heroin and gave it to the victim. The patient, if properly warned, would have had the operation at another time, probably with a … March v . Listing dates, Orders & links to judgments, Subscribe to Judgments & Events by NPA; Practice News, Daily Court Lists and more, User group meetings, Harmonised Rules Committees (Bankruptcy & Corporations). But the premise might be questioned. When they were in Iraq they were held by Iraqi Airways. 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). 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. [17] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 517 - 518. Stramare). Their Honours pointed out that in Betts, 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. If a person is capable of giving that evidence, and making that assessment, then some other rationale might need to be found for the replacement of causation in this context with a rule of material contribution. [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. If causation is found to exist, what principles should be applied to determine whether responsibility should be imposed? 1.1. Negligence . [32] Fernando by his Tutor Ley v Commonwealth of Australia & Anor [2015] HCATrans 190 (14 August 2015). (Haber v Walker; Medlin v State Gov Insurance) Conscious knowledge of intervening act (McKew v Holland) http://www.austlii.edu.au/au/cases/cth/HCA/1991/12.html. The leading decision was given by Mason CJ, with whom Toohey and Gaudron JJ agreed. MBF Australia v Malouf [2008] NSWCA 214 . Although their Honours all agreed with McHugh J that the truck driver was liable, Mason CJ preferred a "common sense" approach to the issue of causation in preference to the "but for" test. 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'. J Fleming The Law of Torts ( 3rd Ed, Law Book Co, Sydney, 1965) p 231. - 171 CLR 506; 65 ALJR 334; 99 ALR 423; (1991) Aust Torts Reports ¶81–095; 12 MVR 353 Take an example derived from the facts in the United States Supreme Court decision in Burrage v United States. 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. By contrast, section 5D(1) seemingly did not allow for that approach. This is the "common sense" test of causation. The Court of Appeal rightly said that Mr Abraham was a wrongdoer. Including Bankruptcy, Corporations, Migration, Administrative & Constitutional Law and Human Rights; Communicating with the Court; Expert witnesses. 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. Law of Tort – Negligence – Causation – Remoteness of Damage – Damages – Novus Actus Interveniens. Thus, it is not an exclusivetest of causation. The discussion of the quantum of liability was different. Professors Hart and Honoré asserted that 'cause' in everyday speech means more than a 'but for' or necessary condition. The leading decision was given by Mason CJ, with whom Toohey and Gaudron JJ agreed. Kuwait Airways sued Iraqi Airways for damages for conversion. March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 530; 99 ALR 423; 65 ALJR 334. 1.1.1.1. This approach to causation accords with linguistic use. 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 … [7] In the jurisprudence of constitutional law, 'top down reasoning' has become a term of derision. 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. Rather than attempt to offer an answer to the question in, Administrative and Constitutional Law and Human Rights NPA, Federal Crime and Related Proceedings NPA, Law Council of Australia's "Federal Court Case Management Handbook", Learn about Court processes, procedures & documents. ge using 'bottom up' reasoning starts with the cases and moves from there (usually not very far). This preview shows page 31 - … A better approach would be for point (iii) also to be treated as a legal rule arising independently of the metaphysics of causation. Mason CJ: 1.1.1. In D 9.2.11.2, Julian asked only if the person striking the slave was liable. 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'. A majority of the court, adopting the approach from Burt CJ in Western Australia,[4] held that it was sufficient if a jury were told that the question of causation was not a philosophical or scientific question, but that it was 'a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter'.[5]. [ 7 ] in that case, Mr Baker, was a reference to common sense '',... The absence of causation or material contribution [ 26 ] Performance Cars Ltd v [. 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The appeal settled almost on the go where this question had been previously damaged by wrongdoer!