The same panel of the Rolls Royce had been previously damaged by another wrongdoer who was liable to pay for the repairs. All of them need to be justified. In contrast, a scholar or judge using 'bottom up' reasoning starts with the cases and moves from there (usually not very far). [11] H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985). Professors Hart and Honoré also argued that novus actus interveniens is an example where a necessary event is not a cause. 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. In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. (2) If causation is found to exist, what principles should be applied to determine whether responsibility should be imposed? The court could proportion the extent of liability to both defendants (March v Stramare) Were there any Novus actus interviens that broke the chain of causation to the harm of Bob? 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". There are several problems with the "common sense" test for causation. In Sindell v Abbott Laboratories 607 P 2d 924 (1980) the plaintiff consumed medication that caused bodily injury due to its negligent manufacture. Select a state registry to view the current court list: Select a state registry to view the current court list. The first is to suggest that causation has only one meaning. In particular, the. [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. [12] But it is misleading to speak of the cause of the fire. 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. 7 March v Stramare. 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. In 2012, I was listed to sit on an appeal where this question had been raised. 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. [23] This is an awkward approach. March v Stramare. [25] Burrage v United States (2014) 571 US (forthcoming, 27 January 2014). 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. [13], Thirdly, the reasons why the common sense test was adopted in March did not require that test. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v. ABDI (S156/1999) ... alternatively, misconceived and misapplied the principles stated in March v. E & MH Stramare Pty Limited (1991) 171 CLR 506. - Subsequent event must arise independently of the original wrong and must disturb sequence of events that wouldve been anticipated. 8 CLA (n 1) s 13(1)(a). My presentation today draws heavily from that article, although some arguments are refined. 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). They give an example of a person who provides arsenic to another who uses it to poison a victim. 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. 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. * It was disproved by Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (1961) that used the foresee-ability 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. assault—novus actus interveniens—whether decision and/ or doctors’ acts break causal link WALLACE (BERLINAH) [2018] EWCA Crim 690; March 28, 2018 W threw acid over the victim, MD, whose resulting inju-ries left him disfigured, paralysed, partially blind and in constant physical and psychological pain. The defence submitted that the act of voluntary euthanasia as a free, deliberate and informed decision was a novus actus interveniens breaking the chain of causation, in circumstances where Mr van Dongen could survive. Medlin v State Government Insurance Commission (1995) 182 CLR 1 [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? 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'. But the premise might be questioned. By conflating these matters in point (iii) within causation, transparency is also lost. [36] He argues that by abandoning the requirement of causation (but for) in cases of strict liability torts prevents strict liability from becoming meaningless. The House of Lords reached the same conclusion as the Romans and held all employers fully liable in solidum. It is more probable than not that smoking was a cause (in the sense that it was a necessary condition) of Mr Cotton’s cancer.! Richardson v Mt Druitt Workers Club [2011] NSWSC 31. 6 . Decisions In the case of multiple tortfeasors and deceit, the test of causation is replaced by a test of contribution. 4 . I need to look through the multiple causal factors of each party. One such case came before the House of Lords which involved a situation where multiple employers had exposed an employee to asbestos. 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. This decision posed a test for causation which I respectfully submit may be in decline. Such event is the new intervening act _ or novus actus interveniens _, where subsequent event is seen as overtaking the causal connection. Judge Posner famously illustrated this idea by reference to concepts of top down and bottom up reasoning. It is clearly reasonably foreseeable that a rescue by helicopter would have to occur if a walker was injured. driver (P) sues owner of van (D). 10 Wagon Mound (No.2) [1967] AC 617, 633. 27 Allianz ... , “effective cause” and “novus actus”. The Kuwaiti planes had been brought to Iraq by Iraqi armed forces after the 1990 invasion of Kuwait. [41] Standard Chartered Bank v Pakistan Shipping Corporation [2003] 1 AC 959, 967 [16]. [48] Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32. The relevant event was "use of a substance, namely heroin only" and the relevant outcome was "death". [29]In that case, the appellants were unlawfully detained pending deportation because their detention was under an unlawful blanket policy. 28 Travel Compensation Fund v Tambree. As 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. The Court of Appeal rightly said that Mr Abraham was a wrongdoer. In 2012, I was listed to sit on an appeal where this question had been raised. [17] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 517 - 518. It is clearly reasonably foreseeable that a rescue by helicopter would have to occur if a walker was injured. [8] See the cases discussed in K Mason 'What is wrong with top-down legal reasoning' (2004) 78 ALJ 574. ... March v E & M H Stramare Pty Ltd (1991) 171 CLR 506. Facts: * Two separate plaintiffs for both of these cases. As I will explain, this is a very desirable approach. 20. In Standard Chartered Bank v Pakistan Shipping Corporation (Nos 2 & 4),[40] Lord Hoffmann said that the law 'takes no account' of reasons that influence a person to act other than the material misrepresentation because it 'would not seem just that a fraudulent defendant's liability should be reduced on the grounds that, for whatever [other] reason, the victim should not have made the payment which the defendant successfully induced him to make'. In particular, it is unlikely that anyone would claim that A caused B if A made no difference to whether or not B occurred. [34] Hence, it was argued, Iraqi Airways should not be liable to pay damages. 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. A better approach would be for point (iii) also to be treated as a legal rule arising independently of the metaphysics of causation. Tort: Causation Element: Novus actus interveniens intoxicated motorcycle driver hits negligently parked van. [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. Or, to put the proposition negatively, the event is not a cause of an outcome if the outcome would have happened anyway. assault—novus actus interveniens—whether decision and/ or doctors’ acts break causal link WALLACE (BERLINAH) [2018] EWCA Crim 690; March 28, 2018 W threw acid over the victim, MD, whose resulting inju-ries left him disfigured, paralysed, partially blind and in … This amounts to a “necessary condition” of the harm under s 5D(1)(a) of the Civil Liability Act 2002 (NSW). [31] In Australia, a case raising similar issues was last month given special leave to appeal to the High Court of Australia.[32]. [42] Reynell v Sprye (1852) 1 De GM & G 660, 708-709; (1852) 42 ER 710, 728 - 729. Rather than attempt to offer an answer to the question in Fairchild, I make two observations. [26] Performance Cars Ltd v Abraham [1962] 1 QB 33. March v Stramare, [27] 5. [6] Instead, the common sense approach encourages a pure form of top down reasoning. It is usually hard to establish that an act is … PTY. 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. [52] Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572. 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. [14] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516 – 519. 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"? [46] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516-517. 20. March v E & MH Stramare Pty Ltd [1991] HCA 12 at para 5 per Mason CJ. necessary condition) of Mr Cotton’s cancer. In that case, Mr Burrage provided the heroin used by Mr Banka, a long time drug user. 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. [38] Edgington v Fitzmaurice (1885) 29 Ch 459, 483. There are significant signs that the law is moving towards an acceptance of a necessity test for causation, that is a "but for" test. That characterisation process involves normative questions. Amongst a number of English and Commonwealth cases of high authority, he cited at pp 1373-1374 the judgment of the High Court of Australia in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 515, in which Mason CJ emphasised that it is wrong to place too much weight on the "but for" test to the exclusion of the "common sense" approach which the common law has always favoured, … You must confirm your e-mail address before editing pages. In such cases what may be unclear is the extent to which one of these conjunctive causal factors contributed to that state of affairs. Remoteness s 5D(1)(b) Contract versus tort – The scope varies – Koufos v Czarnikow Novus Actus Interveniens Adelaide Chemical & Fertilizer Co v Carlyle (1940) 64 CLR 514 March v Stramare (1991) 171 CLR 506 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Lamb v London Borough of Camden [1981] QB 625 Lamb v London Borough of Camden [1981]2 All ER 408 Haber v Walker (1963) VR 339 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Haynes v … [51] H Scott 'Killing and causing death in Roman law' (2013) 129 LQR 101, 120 -122. 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'. Baker v Willoughby [1970] AC 467. I need to look through the multiple causal factors of each party. As. At the start of this paper I mentioned that causation. Register to receive daily court lists by email soon after they are published. LTD. (1991) 171 CLR 506. It … 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. 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. Novus Actus Interveniens Chapman v Hearse is a significant case in common law related to duty of care, reasonable foreseeability and novus actus interveniens within the tort of negligence. As Gummow, Hayne and Crennan JJ said in Amaca Pty Ltd v Booth[45]. 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. About Court fees including exemptions, deferral & refunds, Under Federal Court Rules 2011, Schedule 3, Pre-judgment & post-judgment interest rates. Causation is the "causal relationship between conduct and result". 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. March v Stramare (1991): shows the limitations of the ‘but for test’ o FACTS: D parked his truck in the middle of the road to unload items into a shop (with hazard lights on). This is the "common sense" test of causation. Cook was in the bush. March v Stramare Pty Ltd (1990-1991) 171 CLR 506 at page 531. Alternatively, as John Stuart Mill put it, the 'whole cause' includes all necessary conditions. The second observation is to reiterate Lord Hoffmann's most powerful point: if a common law claim is brought for loss suffered that was caused by wrongdoing, then before a court departs from the requirement that the wrongdoing was necessary for the loss (and hence abolishes or replaces the rules of causation) there should be a rational and justifiable basis in principle for doing so. If 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. 12 Environment Agency v Empress Car. [35] L Hoffmann 'Causation' in R Goldberg (ed) Perspectives on Causation (2011) 6 - 7. Student Law Notes is the perfect resource for Law Students on the go! Law of Tort – Negligence – Causation – Remoteness of Damage – Damages – Novus Actus Interveniens. 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'. One difficult issue for causation is the characterisation of the event and the outcome that must be causally linked. [15] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516. However, if the question is whether Mr Abraham’s conduct had caused financial loss to Performance Cars then the answer is "no". *March v Stramare - Causation is determined by applying the 'but for' test as well as common sense principles to the facts of the case. MARCH v. STRAMARE (E. and M.H.) Mr Abraham was found to have carelessly driven into the Rolls Royce owned by Performance Cars, he infringed the rights of Performance Cars. The underlying theme for today’s conference is causation. [34] Cf J Stapleton 'Unnecessary causes' (2013) 129 LQR 39, 58-61. The same panel of the Rolls Royce had been previously damaged by another wrongdoer who was liable to pay for the repairs. [13] J S Mill A System of Logic, Ratiocinative and Inductive (1970, Book 3) 214-218. 1985) 30-41. The Court of Appeal was not concerned with whether the plaintiff would nevertheless have lent the money but for the deceit. 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. 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. 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). 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. An event will only ever be a cause of an outcome if the event is necessary for the outcome. Further discussion taking the common sense approach is required (March v Stramare). 1985) 30-41. 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. The concept of 'common sense' causation arguably would not have survived without the powerful support of Professors Hart and Honoré. The similarity between the two classes of case is that the plaintiff can’t prove that but for the wrong the plaintiff would not have suffered the loss. Performance Cars Ltd v Abraham [1962] 1 QB 33. The similarity between the two classes of case is that the plaintiff can’t prove that but for the wrong the plaintiff would not have suffered the loss. ';[42] ''How is it possible to say in what manner the disclosure would have operated on Kay's mind';[43] 'You cannot weigh the elements by ounces'. The negligence of a rescuing party is not a novus actus (i.e. [9], I should emphasise that, unlike some theorists, I do not say that top down reasoning is always illegitimate. As it turns out, there are numerous such instances in the law. First, as Dixon J of the Victorian Supreme Court recently observed with great cogency, the 'common sense' approach is not a legal test. 1.1) Novus Actus Interveniens in relation to Act of God. Although their Honours all agreed with McHugh J that the truck driver was liable, Mason CJ preferred. The discussion of the quantum of liability was different. An example they gave is where a fire has broken out. Bennett v Minister of Community Welfare (1992) 176 CLR 408 For some time, these damages were described as "vindicatory damages". One possible answer, although not without difficulty, is provided by Dr Douglas. When they were in Iraq they were held by Iraqi Airways. Secondly, 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. a "common sense" approach to the issue of causation in preference to the "but for" test. On an application of the "but for" test, the answer to the causal inquiry was simple. Pages 170 This preview shows page 110 - 112 out of 170 pages. , 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. In criminal law, it is defined as the actus reus (an action) from which the specific injury or other effect arose and is combined with mens rea (a state of mind) to comprise the elements of guilt. The Defendant [Stramare] parked a truck in the middle of the road whilst they were unloading items into a shop. 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. 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'. FEBRUARY/MARCH 2000. 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