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. ... - Held that the sexual assault was a Novus Actus Interveniens - If the third party's action is deliberate and wrongful then the chain will be broken. On an application of the "but for" test, the answer to the causal inquiry was simple. 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 difficult question then is why causation of loss is unnecessary for intentional wrongdoing that deprives a person of possession. 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. 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. [51] H Scott 'Killing and causing death in Roman law' (2013) 129 LQR 101, 120 -122. event which is seen as the real cause of the loss (March v Stramare). He also relied on statements in a prospectus that were fraudulently made by the directors. [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. 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). 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. 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]. Mr Abraham was found to have carelessly driven into the Rolls Royce owned by Performance Cars, he infringed the rights of Performance Cars. * It was disproved by Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (1961) that used the foresee-ability test. A better approach would be for point (iii) also to be treated as a legal rule arising independently of the metaphysics of causation. The Court of Appeal rightly said that Mr Abraham was a wrongdoer. [15] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516. '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. Otherwise, Douglas suggests, the focus would shift from the intentional nature of the conduct, however honest and reasonable, to questions of blameworthiness. As McHugh J explained:[1]. That meaning is necessity which is applied by a test, as lawyers commonly call it, of "but for". This decision posed a test for causation which I respectfully submit may be in decline. [35] L Hoffmann 'Causation' in R Goldberg (ed) Perspectives on Causation (2011) 6 - 7. Register to receive daily court lists by email soon after they are published. 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. Indeed, the "common sense" approach is not actually "common" sense. One such case came before the House of Lords which involved a situation where multiple employers had exposed an employee to asbestos. 8 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. [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. 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'. For some time, these damages were described as "vindicatory damages". [22] J Stapleton 'Cause-in-Fact and the Scope of Liability for Consequences' (2003) 119 LQR 388, 411. The Kuwaiti planes were later destroyed by the coalition bombing of Mosul. 20. In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. [25] Burrage v United States (2014) 571 US (forthcoming, 27 January 2014). 9 CLA (n 1) s 13(1)(b). [17] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 517 - 518. 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'. Law of Tort – Negligence – Causation – Remoteness of Damage – Damages – Novus Actus Interveniens. [36] S Douglas Liability for Wrongful Interferences with Chattels (2011) 203 – 205. 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. Haynes v Harwood [1935] 1 KB 146 J Fleming The Law of Torts ( 3rd Ed, Law Book Co, Sydney, 1965) p 231. An example they gave is where a fire has broken out. The Kuwaiti planes had been brought to Iraq by Iraqi armed forces after the 1990 invasion of Kuwait. If you convert someone's property you have to pay for it or give it back'.[35]. illustrated this idea by reference to concepts of top down and bottom up reasoning. as Dixon J of the Victorian Supreme Court recently observed with great cogency, the 'common sense' approach is not a legal test. Causation of loss is not required because loss is not required. I & L Securities v HTW Val uers (2002) 210 CLR 109, at [56] per Justices Gaudron, Gummow and Hayne. ge using 'bottom up' reasoning starts with the cases and moves from there (usually not very far). Causation is the "causal relationship between the defendant's conduct and end result". 6 . In contrast, a scholar or jud. [13], Thirdly, the reasons why the common sense test was adopted in March did not require that test. Are people always incapable of weighing relative contributions to their decisions? The underlying theme for today’s conference is causation. [12] But it is misleading to speak of the cause of the fire. [47] Wakelin v London & South Western Railway Co (1886) 12 App Cas 41, 47. 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". Must look to the risk prospectively - not retrospectively. Professor Stapleton considers that point (iii) is an example of causation, although one which does not require necessity. I start with the leading causation decision of the High Court of Australia in relation to the law of torts. That is, causation requires that the outcome would not have occurred "but for" the event. A majority of the Supreme Court of Canada heldthat both … The relevant event was "use of a substance, namely heroin only" and the relevant outcome was "death". It is irrelevant whether the defendant would have squandered the money if it had been paid, or if the money would have been stolen or lost. [6] Instead, the common sense approach encourages a pure form of top down reasoning. Medlin v State Government Insurance Commission (1995) 182 CLR 1 A wrong has occurred but it is not necessary for the plaintiff to prove that the misrepresentation caused the loss that was suffered. It … Professors Hart and Honoré asserted that 'cause' in everyday speech means more than a 'but for' or necessary condition. , the reasons why the common sense test was adopted in, (ii)  Where a superseding cause, sometimes described as a, Professors Hart and Honoré also argued that, 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. PTY. [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'. As McHugh J explained: However, this approach by McHugh J did not command the support of the other members of the High Court. These damages, to the extent to which they continue to exist, were confined to "constitutional rights. involves nothing more or less than the application of a "but for" test of causation’. [44] Arnison v Smith (1875) 41 Ch D 348, 369 (Lord Halsbury LC). Conclusions: ! The leading decision was given by Mason CJ, with whom Toohey and Gaudron JJ agreed. Cook was in the bush. unreasonable action – M’Kew v Holland & Hannen & Cubitts (Scottland) - It will not be a NAI when the original act generated the risk of the intervening act – March v Stramare - Novus actus interveniens can also be argued in contract – Alexander v Cambridge Credit … Select a state registry to view the current court list: Select a state registry to view the current court list. o Causation: ‘but for’ test (March v Stramare) – would the plaintiff have suffered the harm but for the defendant’s negligence § Suggestion (by Mason J in HC) that the causation test be supplemented by ‘common sense’ (to replace remoteness test) – however, this is arguably an unsophisticated, vague and conceptually empty suggestion On the other hand, outside the law of negligence it has sometimes been possible to characterise the relevant outcome as the injury rather than the loss that has been suffered and to find that a substantial award is required to vindicate the plaintiff’s rights even if no loss has been suffered. 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. 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. Iraqi Airways argued that the planes would have been lost to Kuwaiti Airways even if they had not been converted by Iraqi Airways. But it is not immediately obvious that a wrong was committed in Fairchild. March v Stramare, [27] 5. Pages 170 This preview shows page 110 - 112 out of 170 pages. Adelaide Chemical & Fertilizer Co v Carlyle (1940) 64 CLR 514 About Court fees including exemptions, deferral & refunds, Under Federal Court Rules 2011, Schedule 3, Pre-judgment & post-judgment interest rates. In some cases, liability is imposed despite the absence of causation of loss. But then the same concept of causation permits an outcome to be treats as caused by an event even if the relevant outcome would have been exactly the same without the event. The complainant, Mr Baker, was a pedestrian who had been knocked down by the defendant driving a car in September 1964. Cf March v E and M H Stramare Pty Ltd (1991) 171 CLR 506 per Mason CJ at 515-516, Deane J at 521 - 523, Toohey J at 524. As Bowen LJ explained, '[t]he real question is, what was the state of the [p]laintiff's mind, and if his mind was disturbed by the misstatement of the [d]efendants, and such disturbance was in part the cause of what he did'. If causation is not found to exist, should responsibility be imposed in any event? Editor’s Note: Case Briefs on some foreign Judgments dealing with the doctrine of ‘novus actus interveneiens ... Case- March v. E. & M. H. Stramare Pty Ltd. Facts- The defendant parked a truck across the centre line of a six lane street, partially blocking the offside lane in each direction of the road. Causation is the "causal relationship between conduct and result". 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". The Court of Appeal rightly said that Mr Abraham was a wrongdoer. [23] J Stapleton 'Unnecessary causes' (2013) 129 LQR 39. 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. In D 9.2.11.2, Julian asked only if the person striking the slave was liable. 9 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332. The concept of 'common sense' causation arguably would not have survived without the powerful support of Professors Hart and Honoré. For instance, liability might be denied because there is no duty. Novus Actus Interveniens. In 2012, I was listed to sit on an appeal where this question had been raised. [7] In the jurisprudence of constitutional law, 'top down reasoning' has become a term of derision. Sometimes the reverse situation to a novus actus occurs, i.e. 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). This novus actus interveniens (new intervening cause) may be such as the court will find the operative cause of the harm despite the earlier negligence. [20] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516. I will also explain reasons why judges have been reluctant to embrace this meaning. 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. 28 Travel Compensation Fund v Tambree. The House of Lords was asked if any employer 'caused' the mesothelioma. The House of Lords held that Iraqi Airways was liable to pay damages. [40] Standard Chartered Bank v Pakistan Shipping Corporation (Nos 2 & 4) [2003] 1 AC 959. 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. Causation element is because hc has said this uses. I0 Craven, above n 3,100. l1 H L A Hart and T Honore, Causation in the Law (2nd Ed. [28] But the contrary result was reached by the United Kingdom Supreme Court in Lumba v Secretary of State for the Home Department. Obvious examples are instances where a defendant owes a debt to a plaintiff. The appeal settled almost on the eve of the hearing. 5 Breach of Duty Causation: Civil Liability Act (NSW) The Civil Liability Act (NSW) adopted the 'but for' test outlined by McHugh in March v Stramare … Prior to the CLA, March v Stramare was the leading common law case on causation. It is still an important starting point for considering concepts such as necessary condition ûthe but for test, its limitations, novus actus interveniens and the relationship between remoteness and causation. March v Stramare (1991) 171 CLR 506 In particular, the. The High Court unanimously held that the truck driver and his employer were liable. Kuwait Airways sued Iraqi Airways for damages for conversion. 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. The various Civil Liability legislation also recognises that there can be possible exceptions to causation. I need to look through the multiple causal factors of each party. Mr Banka died from a drug overdose after an extended drug binge including the heroin. 9 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332. Including Bankruptcy, Corporations, Migration, Administrative & Constitutional Law and Human Rights; Communicating with the Court; Expert witnesses. Hudson, [103] 3 ... causation or to more specific criteria such as ‘novus actus interveniens’, ‘sole cause’ or ‘real cause’, all of which conceal unexpressed value judgments.’ When s.5D(1) and (2) are read together, it is … An instructive discussion is contained in the judgment of Mason CJ dealing with novus actus interveniens: ibid at 517-518, omitting most references: You must confirm your e-mail address before editing pages. However, there were many manufacturers of that drug in the market. On an application of the "but for" test, the answer to the causal inquiry was simple. 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. [26] Performance Cars Ltd v Abraham [1962] 1 QB 33. 9. (2) If causation is found to exist, what principles should be applied to determine whether responsibility should be imposed? Remoteness s 5D(1)(b) Contract versus tort – The scope varies – Koufos v Czarnikow P sued for negligence. [45] Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36, 62 [70]. Bennett v Minister of Community Welfare (1992) 176 CLR 408 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. Chapman v Hearse (1961) 106 CLR 112 Chapman argued that Hearse’s actions in hitting Dr Cherry constituted a novus actus interveniens, and thus, he no longer owed a duty of care, as the causal connection was broken. Responsibility should be imposed in any event of Australia, the 'common sense ' causation arguably would be. Royce had been knocked down by the High Court of appeal was not liable to for! 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