MBF Australia v Malouf [2008] NSWCA 214 . [25] Burrage v United States (2014) 571 US (forthcoming, 27 January 2014). [5] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378, 387 (Mason CJ) 411 - 412 (Deane & Dawson JJ) 441 (Toohey & Gaudron JJ). 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. [8] A "common sense" approach appeals to intuition. Mr Abraham was lucky. 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'. FC can still be established if appropriate case in accordance with established principles – court to consider if liability should be imposed (WA. Although their Honours all agreed with McHugh J that the truck driver was liable, Mason CJ preferred. Negligence – Causation – Duty of care – Injury reasonably foreseeable – Successive negligent acts by different persons – Whether first negligent … All of them need to be justified. s 51(2)). [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. Here there was sufficient causal proximity. March v . Professors Hart and Honoré also argued that novus actus interveniens is an example where a necessary event is not a cause. 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. 1.1.1.3. [1] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 530. [37]In that case, the plaintiff lent money to a company due to his mistaken belief that the loan was secured by a charge. One difficult issue for causation is the characterisation of the event and the outcome that must be causally linked. 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.[10]. [1992] HCA 55; (1992) 175 CLR 514. In the primary judgment, the trial judge apportioned liability as 70% (appellant) and 30% (respondents). Mason CJ: 1.1.1. 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"? Causation of loss is not required because loss is not required. Mr Abraham was lucky. [14] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516 – 519. Mason CJ: 1.1.1. [44] Arnison v Smith (1875) 41 Ch D 348, 369 (Lord Halsbury LC). 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. 1.1. March v Stramare (1991) 171 CLR 506. asserted that 'cause' in everyday speech means more than a 'but for' or necessary condition. An act cannot be considered an intervening act (which b… 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. 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). On 3 March 2010 the High Court of Australia delivered a very important decision relevant to causation in lung cancer cases. [27] They attracted ferocious academic defence. In the matter of Courtenay House Capital Trading Group Pty Limited (in liquidation) and Courtenay House Pty Limited (in liquidation) (2018) 125 ACSR 149 . 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. Iraqi Airways argued that the planes would have been lost to Kuwaiti Airways even if they had not been converted by Iraqi Airways. [7] In the jurisprudence of constitutional law, 'top down reasoning' has become a term of derision. March v Stramare (E & M H) Pty Ltd [1991] HCA 12. [39] Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215, 251. Loss is essential to a claim for negligence so Mr Abraham was not liable to pay damages for a car that had previously been damaged. The High Court avoided an examination of the extent to which When the House of Lords heard the case in 2002, it was generally (perhaps incorrectly) assumed that all the employers had committed a wrong, much like all the persons who struck the slave. [12] H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985) 11. In many cases causation means that an event must be necessary for an outcome. Alternatively, as John Stuart Mill put it, the 'whole cause' includes all necessary conditions. Or liability might be denied for the extent of the loss claimed because that extent of loss is too remote, or involved a novus actus interveniens or was otherwise not within the scope of liability for the consequences claimed. The 'but for' test fails on two accounts - cases which involve multiple causes and cases in which there is an intervening act. 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. 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. Like many other examples considered below, it requires justification for why causation is either replaced by a different rule, or disregarded. This approach to causation accords with linguistic use. It suggests that the judge ought to reason downwards from the intuitive sense of a conclusion. March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 516 (Mason CJ), 523 (Deane J). [17] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 517 - 518. The relevant event was "use of a substance, namely heroin only" and the relevant outcome was "death". [33] Iraqi Airways committed the tort of conversion by taking possession of planes belonging to Kuwait Airways. 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. Professors Hart and Honoré asserted that 'cause' in everyday speech means more than a 'but for' or necessary condition. The Court is concerned with common law notions of causation. Secondly, the common sense approach is, in part, based upon a linguistic error. Indeed, the "common sense" approach is not actually "common" sense. The patient, if properly warned, would have had the operation at another time, probably with a … The same panel of the Rolls Royce had been previously damaged by another wrongdoer who was liable to pay for the repairs. The Court of Appeal was not concerned with whether the plaintiff would nevertheless have lent the money but for the deceit. March v Stramare Pty Ltd (1990-1991) 171 CLR 506 at page 531. FC established if P cannot prove exact cause of harm, but can show D’s breach materially increased risk of harm [6] Instead, the common sense approach encourages a pure form of top down reasoning. There are significant signs that the law is moving towards an acceptance of a necessity test for causation, that is a "but for" test. Allianz Australia Ltd v Sim (2012) 10 DDCR 325; [2012] NSWCA 68 at [49]–[52]. But the premise might be questioned. The recent decision of the High Court of Australia in March v Stramare (1991) 171 CLR 506 was in an action in tort. 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. Student Law Notes is the perfect resource for Law Students on the go! ge using 'bottom up' reasoning starts with the cases and moves from there (usually not very far). ACQ PL v Cook; Aircair Moree PL v Cook [2009] HCA 28. March v Stramare (1991) 171 CLR 506 – High Court of Australia Facts: The respondents negligently parked a truck partially obstructing a road. 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. He assumed that the reference to "that substance" was a reference to the heroin only. 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 is not to endorse reasoning to a result by reference to some preferred social policy. Plaintiff’s contributory negligence does not cut off defendant’s liability. [33] Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 & 5) [2002] 2 AC 883. In that case, Mr Burrage provided the heroin used by Mr Banka, a long time drug user. [48] No employment could be proved to have been necessary for the employee's subsequent mesothelioma. Stramare. Professor Stapleton considers that point (iii) is an example of causation, although one which does not require necessity. [32] Fernando by his Tutor Ley v Commonwealth of Australia & Anor [2015] HCATrans 190 (14 August 2015). In particular, it is unlikely that anyone would claim that A caused B if A made no difference to whether or not B occurred. [26] Performance Cars Ltd v Abraham [1962] 1 QB 33. The expert evidence was that Mr Banka may have died even if he had not taken the heroin. 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 … s 51(2)). Take an example derived from the facts in the United States Supreme Court decision in. [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]. 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]. [34] Hence, it was argued, Iraqi Airways should not be liable to pay damages. Similarly, the type of damage was patently foreseeable, another point conceded by Apand: see Overseas Tankship (UK) Ltd v Instead, it makes those questions more transparent. 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. [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. Including Bankruptcy, Corporations, Migration, Administrative & Constitutional Law and Human Rights; Communicating with the Court; Expert witnesses. In effect, he advised that the Court should apply the common law common sense approach to causation referred to by the High Court in March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. MBF Australia v Malouf [2008] NSWCA 214 . [44] It may be that this rule is now too well established to be disturbed. Causation is a question of fact to be determined with reference to common sense and experience. Rather than attempt to offer an answer to the question in, Administrative and Constitutional Law and Human Rights NPA, Federal Crime and Related Proceedings NPA, Law Council of Australia's "Federal Court Case Management Handbook", Learn about Court processes, procedures & documents. Contributory negligence - If the plaintiff is negligent this may satisfy the court that the ‘chain … Stanford Libraries' official online search tool for books, media, journals, databases, government documents and more. 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 first is to suggest that causation has only one meaning. [43] Smith v Kay (1859) 7 HLC 750, 759; (1859) 11 ER 299, 303. [9], I should emphasise that, unlike some theorists, I do not say that top down reasoning is always illegitimate. The leading authority in this area is March v Stramare: 1. Law of Tort – Negligence – Causation – Remoteness of Damage – Damages – Novus Actus Interveniens. I will skip over this point briefly because it is uncontroversial. This is the "common sense" test of causation. The House of Lords held that Iraqi Airways was liable to pay damages. There are a large number of instances where liability is imposed despite the absence of causation. 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 complainant, Mr Baker, was a pedestrian who had been knocked down by the defendant driving a car in September 1964. [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. 24 April 1991 . 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. Giving the opinion of the court, Scalia J explained that the expression 'results from' should bear the ordinary causal meaning of 'but for' causation. An event will only ever be a cause of an outcome if the event is necessary for the outcome. [23] This is an awkward approach. [11] I doubt whether this is correct. 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. They give an example of a person who provides arsenic to another who uses it to poison a victim. On an application of the "but for" test, the answer to the causal inquiry was simple. First, as Dixon J of the Victorian Supreme Court recently observed with great cogency, the 'common sense' approach is not a legal test. In R v Kennedy (No 2) [2007] UKHL 38, the accused prepared a syringe of heroin and gave it to the victim. However, this approach by McHugh J did not command the support of the other members of the High Court. Could he still have sued his employer for exposing him to the possibility of mesothelioma? 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'. At the start of this paper I mentioned that causation. Rather than attempt to offer an answer to the question in Fairchild, I make two observations. , 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. [38] Edgington v Fitzmaurice (1885) 29 Ch 459, 483. A wrong has occurred but it is not necessary for the plaintiff to prove that the misrepresentation caused the loss that was suffered. The recent decision of the High Court of Australia in March v Stramare (1991) 171 CLR 506 was in an action in tort. 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. The House of Lords was asked if any employer 'caused' the mesothelioma. 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. I start with the leading causation decision of the High Court of Australia in relation to the law of torts. March v . 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". Instead, it makes those questions more transparent. That meaning is necessity which is applied by a test, as lawyers commonly call it, of "but for". In the language used by the High Court of Australia, the test is one of causation or material contribution. 1.1. The appeal settled almost on the eve of the hearing. Register to receive daily court lists by email soon after they are published. On an application of the "but for" test, the answer to the causal inquiry was simple. The Kuwaiti planes were later destroyed by the coalition bombing of Mosul. 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