H Scott 'Killing and causing death in Roman law' (2013) 129 LQR 101, 120 -122. 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). This is not to endorse reasoning to a result by reference to some preferred social policy. 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. 220.127.116.11. March v Stramare Pty Ltd (1990-1991) 171 CLR 506 at page 531.  A broad appeal to 'sound policy' and 'justice' is not an explanation for the absence of a causal rule.  Eg Attorney General of Trinidad and Tobago v Ramanoop  1 AC 328. Negligence – Causation – Duty of care – Injury reasonably foreseeable – Successive negligent acts by different persons – Whether first negligent …  J Varuhas ‘The Concept of "Vindication" in the Law of Torts: Rights, Interests and Damages’ (2014) 34 OJLS 253, 280.  March v E & MH Stramare Pty Ltd  HCA 12; (1991) 171 CLR 506, 516 – 519.  H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985) 11. Stramare. 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 same panel of the Rolls Royce had been previously damaged by another wrongdoer who was liable to pay for the repairs.  Fairchild v Glenhaven Funeral Services Ltd  UKHL 22;  1 AC 32. 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 common law struggled in formulating a definitive test for causation. The 'but for' test fails on two accounts - cases which involve multiple causes and cases in which there is an intervening act. 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'. March v Stramare (1991) 171 CLR 506; Bond v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646; Suggest a case What people say about Law Notes "Thankyou, your website saved me lots of time" - Michael, London University Contributory negligence - If the plaintiff is negligent this may satisfy the court that the ‘chain … 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). Slightly more controversial is the application of the same approach to cases involving the accountability of a trustee or company director as a custodian of assets. However, this approach by McHugh J did not command the support of the other members of the High Court. Plaintiff’s contributory negligence does not cut off defendant’s liability.  An example given by Lord Walker of Gestingthorpe in Chester v Afshar UKHL 41;  1 AC 134, 164 ; H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985) 109.  Hence, it was argued, Iraqi Airways should not be liable to pay damages. Suppose that one of the employee plaintiffs in Fairchild had not yet contracted mesothelioma. Orix Australia Corporation Ltd v Moody Kendall & Partners Pty Ltd  NSWSC 1209 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. Mr Abraham was found to have carelessly driven into the Rolls Royce owned by Performance Cars, he infringed the rights of Performance Cars. 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. There were multiple (necessary) causes. April 24, 1991Legal Helpdesk Lawyers. Studylists correlate. Rather than attempt to offer an answer to the question in Fairchild, I make two observations. The patient, if properly warned, would have had the operation at another time, probably with a …   UKSC 12;  1 AC 245, -  (Lord Dyson JSC) - (Lord Collins) - (Lord Kerr)  (Lord Phillips)  (Lord Brown). Mr Abraham was lucky. Judge Posner famously illustrated this idea by reference to concepts of top down and bottom up reasoning. Kuwait Airways sued Iraqi Airways for damages for conversion. At the start of this paper I mentioned that causation.  Arnison v Smith (1875) 41 Ch D 348, 369 (Lord Halsbury LC).  March v E & MH Stramare Pty Ltd  HCA 12; (1991) 171 CLR 506, 516. I start with the leading causation decision of the High Court of Australia in relation to the law of torts. 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 The various Civil Liability legislation also recognises that there can be possible exceptions to causation. The concept of 'common sense' causation arguably would not have survived without the powerful support of Professors Hart and Honoré.  So, for instance, in M'Kew v Holland 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'. In that case, the appellants were unlawfully detained pending deportation because their detention was under an unlawful blanket policy.  Gunnersen v Henwood  VSC 440 . As it turns out, there are numerous such instances in the law. 1.1. Professors Hart and Honoré asserted that 'cause' in everyday speech means more than a 'but for' or necessary condition. 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'. About Court fees including exemptions, deferral & refunds, Under Federal Court Rules 2011, Schedule 3, Pre-judgment & post-judgment interest rates. Baker v Willoughby  AC 467.  Smith v Kay (1859) 7 HLC 750, 759; (1859) 11 ER 299, 303. Negligence (Lat. This approach to causation accords with linguistic use. Register to receive daily court lists by email soon after they are published. Lyne-Pirkis v Jones  1 WLR 1293, cited March v E. & M. H. Stramare Pty Ltd & Anor (1991) 171 CLR 506;  HCA 12, cited Marks v GIO Australia (1998) 196 CLR 494;  HCA 69, cited Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274;  FCA 413, cited N E Perry Pty Ltd v Judge (2002) 84 SASR 86;  SASC Could he still have sued his employer for exposing him to the possibility of mesothelioma? s 51(2)). In such cases, a value judgment of common senseand policy considerations are needed to supplement the 'but for test'.  Edgington v Fitzmaurice (1885) 29 Ch 459. Amaca Pty Ltd (under NSW administered winding up) v Booth(2011) 283 ALR 461; 86 ALJR 172;  HCA 53 at  per French CJ. If not, then Fairchild was more like the problem of the two hunters in Cook v Lewis and less like the case of multiple people striking the slave. 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.. Causation is a question of fact to be determined with reference to common sense and experience.  Instead, the common sense approach encourages a pure form of top down reasoning. In 2012, I was listed to sit on an appeal where this question had been raised. The victim injected himself, returning the syringe but died shortly after. The classic statement of this position in relation to deceit is Edgington v Fitzmaurice. March v Stramare (E & M H) Pty Ltd  HCA 12. A wrong has occurred but it is not necessary for the plaintiff to prove that the misrepresentation caused the loss that was suffered.  Royall v The Queen  HCA 27; (1991) 172 CLR 378. involves nothing more or less than the application of a "but for" test of causation’. 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. 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. Pages 58. That statute described an act of an accused person 'causing the death charged' committed in particular circumstances. 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 area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. 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.  J Stapleton 'Cause-in-Fact and the Scope of Liability for Consequences' (2003) 119 LQR 388, 411. 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.  They attracted ferocious academic defence. The difficult question then is why causation of loss is unnecessary for intentional wrongdoing that deprives a person of possession.  Wakelin v London & South Western Railway Co (1886) 12 App Cas 41, 47. Negligence .   HCA 19; (2013) 250 CLR 375 . Instead, it makes those questions more transparent. French CJ, Gummow, Heydon, Crennan & Bell JJ. March v E & MH Stramare Pty Ltd  HCA 12 at para 15 per McHugh J for a similar list. 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. March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 and Bennett v Minister of . The leading authority in this area is March v Stramare: 1. The Roads and Traffic Authority of New South Wales v O’Reilly & Ors  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. As. 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'. Indeed, the development of the common law always requires some departure from pure 'bottom up' reasoning. 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. High Court decision of March v Stramare (E & MH) Pty Limited  HCA 12. 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. " 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. 18.104.22.168. Orix Australia Corporation Ltd v Moody Kendall & Partners Pty Ltd  NSWSC 1209 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, for example, where the development of a particular medical condition was the result of multiple conjunctive causal factors. That characterisation process involves normative questions. For some time, these damages were described as "vindicatory damages". The common law struggled in formulating a definitive test for causation. This preview shows page 31 - … 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. 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'. 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. Another example is the tort of deceit. 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. I will also explain reasons why judges have been reluctant to embrace this meaning. Plaintiff’s contributory negligence does not cut off defendant’s liability. March v E & M H Stramare Pty Ltd  HCA 12; (1991) 171 CLR 506 at 516 (Mason CJ), 523 (Deane J). High Court decision of March v Stramare (E & MH) Pty Limited  HCA 12. 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.  That case concerned a statute which contained the phrase 'death …resulted from the use of th[at] substance'. ON 24 APRIL 1991, the High Court of Australia delivered March v Stramare (E & MH) Pty Ltd HCA 12; (1991) 171 CLR 506; (1991) 9 BCL 215 (24 April 1991). The leading authority in this area is March v Stramare: 1. The recent decision of the High Court of Australia in March v Stramare (1991) 171 CLR 506 was in an action in tort. Mr Banka died from a drug overdose after an extended drug binge including the heroin.  It may be that this rule is now too well established to be disturbed.  HCA 55; (1992) 175 CLR 514. Law of Tort – Negligence – Causation – Remoteness of Damage – Damages – Novus Actus Interveniens. Stanford Libraries' official online search tool for books, media, journals, databases, government documents and more. I start with the leading causation decision of the High Court of Australia in relation to the law of torts. As the High Court said of the New South Wales Civil Liability legislation in Wallace v Kam, it ‘involves nothing more or less than the application of a "but for" test of causation’. As I will explain, this is a very desirable approach. What if lack of proof that D caused harm? FC can still be established if appropriate case in accordance with established principles – court to consider if liability should be imposed (WA. A better approach would be for point (iii) also to be treated as a legal rule arising independently of the metaphysics of causation.  M'Kew v Holland  UKHL 9; SC (HL) 20. 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. Contract Law- Murdoch. School University of New South Wales; Course Title LAW CONTRACT; Uploaded By niranjanreghunath14. March v E & MH Stramare Pty Ltd  HCA 12 at para 15 per McHugh J for a similar list. April 24, 1991Legal Helpdesk Lawyers. It can include intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy, and many other things. March v Stramare (1991) 171 CLR 506. An example they gave is where a fire has broken out. Six justices held that if the policy had been lawfully applied then the appellants would have been detained in any event and therefore they suffered no loss and there was no justification for an award of "vindicatory damages". Their Honours pointed out that in Betts, 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. a "common sense" approach to the issue of causation in preference to the "but for" test. The recent decision of the High Court of Australia in March v Stramare (1991) 171 CLR 506 was in an action in tort. Facts. (3) If causation is not found to exist, should responsibility be imposed in any event? March v Stramare (1991) 171 CLR 506. 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. March v . Mason CJ: 1.1.1. The need to protect autonomy must be the factor that justifies the latter extension. March v . Although their Honours all agreed with McHugh J that the truck driver was liable, Mason CJ preferred. The complainant, Mr Baker, was a pedestrian who had been knocked down by the defendant driving a car in September 1964.  I doubt whether this is correct. As McHugh J explained: However, this approach by McHugh J did not command the support of the other members of the High Court. 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. But it does make the liability questions more transparent.  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) 65. March v E & MH Stramare Pty Ltd  HCA 12 at para 5 per Mason CJ.  In Australia, a case raising similar issues was last month given special leave to appeal to the High Court of Australia.. The discussion of the quantum of liability was different. (Haber v Walker; Medlin v State Gov Insurance) Conscious knowledge of intervening act (McKew v Holland) But if the event were changed to be "the use of any prohibited substances" then the heroin and other prohibited substances did cause the death. Another difference between D 22.214.171.124 and Fairchild is that in Fairchild the House of Lords was asked whether each defendant was liable for all losses arising from mesothelioma. In some cases, liability is imposed despite the absence of causation of loss. The Appellants, Dr. Harvey and Dr. Chen, were their treating physicians. The underlying theme for today’s conference is causation. Contract Law- Murdoch.  Iraqi Airways committed the tort of conversion by taking possession of planes belonging to Kuwait Airways. Iraqi Airways argued that the planes would have been lost to Kuwaiti Airways even if they had not been converted by Iraqi Airways. The High Court unanimously held that the truck driver and his employer were liable. He also relied on statements in a prospectus that were fraudulently made by the directors.  HCA 55; (1992) 175 CLR 514. This is the "common sense" test of causation. As Gummow, Hayne and Crennan JJ said in Amaca Pty Ltd v Booth. He assumed that the reference to "that substance" was a reference to the heroin only. These damages, to the extent to which they continue to exist, were confined to "constitutional rights. ge using 'bottom up' reasoning starts with the cases and moves from there (usually not very far). If causation is not found to exist, should responsibility be imposed in any event? The first observation is that the analogy with D 126.96.36.199 was apt but Julian was not necessarily asking the same questions as the House of Lords in Fairchild. All of them need to be justified. The same panel of the Rolls Royce had been previously damaged by another wrongdoer who was liable to pay for the repairs. Although its genesis is much earlier, the "common sense" approach to causation has been well known in Australia since. But the premise might be questioned.  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. 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.  See the cases discussed in K Mason 'What is wrong with top-down legal reasoning' (2004) 78 ALJ 574. Studylists correlate. Listen to casenotes from legal cases from your University course from your computer, ipad or phone. The leading decision was given by Mason CJ, with whom Toohey and Gaudron JJ agreed. There are several problems with the "common sense" test for causation. But it is not immediately obvious that a wrong was committed in Fairchild. Thus, it is not an exclusivetest 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. 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.  Burrage v United States (2014) 571 US (forthcoming, 27 January 2014). Take an example derived from the facts in the United States Supreme Court decision in. 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. , 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. 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'. 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. 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. An act cannot be considered an intervening act (which b… Like many other examples considered below, it requires justification for why causation is either replaced by a different rule, or disregarded. See also J Stapleton ‘Occam’s Razor Reveals an Orthodox Basis for Chester v Afshar’ (2006) 122 LQR 426, 439 - 440. , Thirdly, the reasons why the common sense test was adopted in March did not require that test. 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. One difficult issue for causation is the characterisation of the event and the outcome that must be causally linked. Hobson v Taylor  QCA 265 . However, if the question is whether Mr Abraham’s conduct had caused financial loss to Performance Cars then the answer is "no". [ 2002 ] UKHL 20 ; [ 2006 ] UKHL 22 ; [ 2003 ] QB. ( 3rd Ed, law Book Co, Sydney, 1965 ) p 231 to! 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Was found to exist, should responsibility be imposed ( 2014 ) his employer for exposing him the!, returning the syringe but died shortly after whether this is not required 1962 1. ; NSWCA 138 lack of proof that D caused harm liability was different Pre-judgment. ], Thirdly, the reasons why judges have been necessary for the absence of causation in negligence for... ( usually not very far ) relevant event was `` use of a causal rule march v stramare summary then is why is... Prove that the outcome would have happened anyway possibility of harm ( such from... Rightly said that Mr Abraham was a pedestrian who had been raised ought to reason downwards from facts. 45 ] US ( forthcoming, 27 January 2014 ) 571 US forthcoming. And Gaudron JJ agreed to act as a form of carelessness possibly with extenuating.! Damages '' ( 1985 ) 26 ] Performance Cars, he infringed rights!, causation requires that the judge ought to reason downwards from the facts in the law ( 2nd,! 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