Negligence – Causation – Duty of care – Injury reasonably foreseeable – Successive negligent acts by different persons – Whether first negligent … [9] W Gummow 'Conclusion' in S Degeling and J Edelman (eds) Equity in Commercial Law (2005) 515. For instance, liability might be denied because there is no duty. 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). Kuwait Airways sued Iraqi Airways for damages for conversion. [31] In Australia, a case raising similar issues was last month given special leave to appeal to the High Court of Australia.[32]. Community Welfare (1992) 176 CLR 408. The leading authority in this area is March v Stramare: 1. 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. 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'. [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 underlying theme for today’s conference is causation. Studylists correlate. Here there was sufficient causal proximity. 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. [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]. Hobson v Taylor [2019] QCA 265 . involves nothing more or less than the application of a "but for" test of causation’. 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 That characterisation process involves normative questions. s 51(2)). 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. March v . [36] S Douglas Liability for Wrongful Interferences with Chattels (2011) 203 – 205. Similarly, the type of damage was patently foreseeable, another point conceded by Apand: see Overseas Tankship (UK) Ltd v [1] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 530. In such cases, a value judgment of common senseand policy considerations are needed to supplement the 'but for test'. [50] 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. 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. The High Court unanimously held that the truck driver and his employer were liable. Professor Stapleton has argued, the law must distinguish between questions that are concerned with causation and questions that are concerned with the scope of liability for consequences. [25] That case concerned a statute which contained the phrase 'death …resulted from the use of th[at] substance'. 24 April 1991 . Contract Exam Notes - Summary - lecture 1 - 15 Chapter 2: A Conceptual Framework_Solutions Remedies Breach - Summary Contract Law Contributory Negligence Discharge by Agreement. [44] It may be that this rule is now too well established to be disturbed. 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 mere exposure of an employee to the possibility of harm (such as from inhaled asbestosis fibres) might not be wrongful. [36] He argues that by abandoning the requirement of causation (but for) in cases of strict liability torts prevents strict liability from becoming meaningless. [42] Reynell v Sprye (1852) 1 De GM & G 660, 708-709; (1852) 42 ER 710, 728 - 729. a "common sense" approach to the issue of causation in preference to the "but for" test. [8] A "common sense" approach appeals to intuition. [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. 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. Rather than attempt to offer an answer to the question in Fairchild, I make two observations. I start with the leading causation decision of the High Court of Australia in relation to the law of torts. Professors Hart and Honoré also argued that novus actus interveniens is an example where a necessary event is not a cause. In the language used by the High Court of Australia, the test is one of causation or material contribution. FC can still be established if appropriate case in accordance with established principles – court to consider if liability should be imposed (WA. But it is not immediately obvious that a wrong was committed in Fairchild. The appellant driving his vehicle, collided with it while under the influence of alcohol. [38] Edgington v Fitzmaurice (1885) 29 Ch 459, 483. Contract Exam Notes - Summary - lecture 1 - 15 Chapter 2: A Conceptual Framework_Solutions Remedies Breach - Summary Contract Law Contributory Negligence Discharge by Agreement. The same panel of the Rolls Royce had been previously damaged by another wrongdoer who was liable to pay for the repairs. s 51(2)). There are two broad points that I will make in this paper. Baker v Willoughby [1970] AC 467. [12] H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985) 11. Thus, it is not an exclusivetest of causation. As the High Court said of the New South Wales Civil Liability legislation in Wallace v Kam,[24] it ‘involves nothing more or less than the application of a "but for" test of causation’. [51] H Scott 'Killing and causing death in Roman law' (2013) 129 LQR 101, 120 -122. [22] J Stapleton 'Cause-in-Fact and the Scope of Liability for Consequences' (2003) 119 LQR 388, 411. Negligence (Lat. Contributory negligence - If the plaintiff is negligent this may satisfy the court that the ‘chain … What if lack of proof that D caused harm? [4] Campbell v The Queen (1981) WAR 286, 290. The 'but for' test fails on two accounts - cases which involve multiple causes and cases in which there is an intervening act. 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. By contrast, section 5D(1) seemingly did not allow for that approach. 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. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. 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. For some time, these damages were described as "vindicatory damages". The classic statement of this position in relation to deceit is Edgington v Fitzmaurice. 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. 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". The expert evidence was that Mr Banka may have died even if he had not taken the heroin. 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. 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 will explain why I believe that the only meaning of causation is "necessity" or, in the common parlance, a test of "but for" causation. [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. ON 24 APRIL 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). Negligence . Mr Abraham was found to have carelessly driven into the Rolls Royce owned by Performance Cars, he infringed the rights of Performance Cars. [26] Performance Cars Ltd v Abraham [1962] 1 QB 33. [16] An example given by Lord Walker of Gestingthorpe in Chester v Afshar[2004] UKHL 41; [2005] 1 AC 134, 164 [94]; H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985) 109. The first observation is that the analogy with D 9.2.11.2 was apt but Julian was not necessarily asking the same questions as the House of Lords in Fairchild. As Gummow, Hayne and Crennan JJ said in Amaca Pty Ltd v Booth[45]. There are significant signs that the law is moving towards an acceptance of a necessity test for causation, that is a "but for" test. 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. In R v Kennedy (No 2) [2007] UKHL 38, the accused prepared a syringe of heroin and gave it to the victim. - 171 CLR 506; 65 ALJR 334; 99 ALR 423; (1991) Aust Torts Reports ¶81–095; 12 MVR 353 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]. There are several problems with the "common sense" test for causation. March v E & MH Stramare Pty Ltd [1991] HCA 12 at para 5 per Mason CJ. 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". March v . Or liability might be denied because the injury, or the loss, about which complaint is made was not within the scope of the duty owed. The common law struggled in formulating a definitive test for causation. 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. Negligence – Causation – Duty of care – Injury reasonably foreseeable – Successive negligent acts by different persons – Whether first negligent … [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. [23] J Stapleton 'Unnecessary causes' (2013) 129 LQR 39. 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. March v Stramare had adopted an approach to causation that was ‘ultimately a matter of common sense’, involving an element of value judgment. PTY. "[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. 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. It suggests that the judge ought to reason downwards from the intuitive sense of a conclusion. [45] Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36, 62 [70]. [6] Instead, the common sense approach encourages a pure form of top down reasoning. The concept of 'common sense' causation arguably would not have survived without the powerful support of Professors Hart and Honoré. 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. On an application of the "but for" test, the answer to the causal inquiry was simple. Contributory negligence - If the plaintiff is negligent this may satisfy the court that the ‘chain … The complainant, Mr Baker, was a pedestrian who had been knocked down by the defendant driving a car in September 1964. as Dixon J of the Victorian Supreme Court recently observed with great cogency, the 'common sense' approach is not a legal test. Law of Tort – Negligence – Causation – Remoteness of Damage – Damages – Novus Actus Interveniens. The various Civil Liability legislation also recognises that there can be possible exceptions to causation. 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). Contract Law- Murdoch. Law of Tort – Negligence – Causation – Remoteness of Damage – Damages – Novus Actus Interveniens. 1.1.1.2. negligentia) is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. This decision posed a test for causation which I respectfully submit may be in decline. [24] [2013] HCA 19; (2013) 250 CLR 375 [16]. [25] Burrage v United States (2014) 571 US (forthcoming, 27 January 2014). March v Stramare had adopted an approach to causation that was ‘ultimately a matter of common sense’, involving an element of value judgment. 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. [9], I should emphasise that, unlike some theorists, I do not say that top down reasoning is always illegitimate. 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). Although its genesis is much earlier, the "common sense" approach to causation has been well known in Australia since March v Stramare. Like many other examples considered below, it requires justification for why causation is either replaced by a different rule, or disregarded. March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 516 (Mason CJ), 523 (Deane J). The leading decision was given by Mason CJ, with whom Toohey and Gaudron JJ agreed. 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. An act cannot be considered an intervening act (which b… 1.1.1.3. School University of New South Wales; Course Title LAW CONTRACT; Uploaded By niranjanreghunath14. March v E & MH Stramare Pty Ltd [1991] HCA 12 at para 5 per Mason CJ. Thus, it is not an exclusivetest of causation. Stanford Libraries' official online search tool for books, media, journals, databases, government documents and more. In the case of a debt, no causation of loss is required. It is an example where causation is unnecessary. [21] See, for instance, J Stapleton 'Cause-in-Fact and the Scope of Liability for Consequences' (2003) 119 LQR 388. [37]In that case, the plaintiff lent money to a company due to his mistaken belief that the loan was secured by a charge. Otherwise, Douglas suggests, the focus would shift from the intentional nature of the conduct, however honest and reasonable, to questions of blameworthiness. In the case of multiple tortfeasors and deceit, the test of causation is replaced by a test of contribution. All of them need to be justified. Although their Honours all agreed with McHugh J that the truck driver was liable, Mason CJ preferred. [2] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515. This is the "common sense" test of causation. In R v Kennedy (No 2) [2007] UKHL 38, the accused prepared a syringe of heroin and gave it to the victim. [11] H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985). That sense is necessity. Allianz Australia Ltd v Sim (2012) 10 DDCR 325; [2012] NSWCA 68 at [49]–[52]. See also Kavanagh v Akhtar, Imbree v McNeilly, and Tame v NSW. I & L Securities v HTW Val uers (2002) 210 CLR 109, at [56] per Justices Gaudron, Gummow and Hayne. On an application of the "but for" test, the answer to the causal inquiry was simple. , I will explain that although this test of causation is simple and elegant it does not replace the difficult normative questions that must be asked. 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. [40] Standard Chartered Bank v Pakistan Shipping Corporation (Nos 2 & 4) [2003] 1 AC 959. 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. I start with the leading causation decision of the High Court of Australia in relation to the law of torts. In the primary judgment, the trial judge apportioned liability as 70% (appellant) and 30% (respondents). [41] A broad appeal to 'sound policy' and 'justice' is not an explanation for the absence of a causal rule. ON 24 APRIL 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). The patient, if properly warned, would have had the operation at another time, probably with a … 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. 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. He assumed that the reference to "that substance" was a reference to the heroin only. March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 and Bennett v Minister of . [7] In the jurisprudence of constitutional law, 'top down reasoning' has become a term of derision. 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. FC established if P cannot prove exact cause of harm, but can show D’s breach materially increased risk of harm The Kuwaiti planes had been brought to Iraq by Iraqi armed forces after the 1990 invasion of Kuwait. 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'. 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 … 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). They are as follows: (1) Since causation is concerned with a relationship between "event" and "response", how do we characterise the relevant "event" and the relevant "response"? In such cases, a value judgment of common senseand policy considerations are needed to supplement the 'but for test'. [18] M'Kew v Holland [1969] UKHL 9; [1970]SC (HL) 20. 1.1.1.2. 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 recent decision of the High Court of Australia in March v Stramare (1991) 171 CLR 506 was in an action in tort. [1992] HCA 55; (1992) 175 CLR 514. This decision posed a test for causation which I respectfully submit may be in decline. asserted that 'cause' in everyday speech means more than a 'but for' or necessary condition. 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. [47] Wakelin v London & South Western Railway Co (1886) 12 App Cas 41, 47. LTD. (1991) 171 CLR 506. However, if the question is whether Mr Abraham’s conduct had caused financial loss to Performance Cars then the answer is "no". Another difference between D 9.2.11.2 and Fairchild is that in Fairchild the House of Lords was asked whether each defendant was liable for all losses arising from mesothelioma. [31] J Varuhas ‘The Concept of "Vindication" in the Law of Torts: Rights, Interests and Damages’ (2014) 34 OJLS 253, 280. 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. Causation of loss is not required because loss is not required. Back to article. [23] This is an awkward approach. The patient, if properly warned, would have had the operation at another time, probably with a … On that approach, Mr Banka's death had not been caused by the use of the heroin. The argument failed. One possible answer, although not without difficulty, is provided by Dr Douglas. 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. 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. 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. The appeal settled almost on the eve of the hearing. If you convert someone's property you have to pay for it or give it back'.[35]. (Haber v Walker; Medlin v State Gov Insurance) Conscious knowledge of intervening act (McKew v Holland) This preview shows page 31 - … 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 … This is the "common sense" test of causation. , the common sense approach is, in part, based upon a linguistic error. 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. [15] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516. The recent decision of the High Court of Australia in March v Stramare (1991) 171 CLR 506 was in an action in tort. April 24, 1991Legal Helpdesk Lawyers. Baker v Willoughby [1970] AC 467. [34] Cf J Stapleton 'Unnecessary causes' (2013) 129 LQR 39, 58-61. [29]In that case, the appellants were unlawfully detained pending deportation because their detention was under an unlawful blanket policy. This case also involved an advancement of the common sense and experience test in assessing causation. In 2012, I was listed to sit on an appeal where this question had been raised. 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. '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. [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]. Plaintiff’s contributory negligence does not cut off defendant’s liability. Facts. An event will only ever be a cause of an outcome if the event is necessary for the outcome. 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Is found to exist, what principles should be imposed [ 2008 ] NSWCA 214 34 ] Hence, requires! 1981 ) WAR 286, 290 be necessary for the repairs 40 ] Standard Chartered v... Corporation Ltd v Moody Kendall & Partners Pty Ltd [ 1991 ] HCA ;. And held all employers fully liable in solidum a plaintiff Glenhaven Funeral Services Ltd 1991! Inquiry was simple only '' and the outcome would not have survived without the support!

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