The relevant event was "use of a substance, namely heroin only" and the relevant outcome was "death".  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. The complainant, Mr Baker, was a pedestrian who had been knocked down by the defendant driving a car in September 1964. Facts. One difficult issue for causation is the characterisation of the event and the outcome that must be causally linked. ... March v E & M H Stramare Pty Ltd (1991) 171 CLR 506. In the case of multiple tortfeasors and deceit, the test of causation is replaced by a test of contribution. The brilliant Alan Rodger instantly recalled Digest 220.127.116.11 where Ulpian, quoting Julian, recounts the solution to such a scenario under chapter 1 of the Lex Aquilia: if several people strike a slave and one cannot tell whose blow killed him, all are liable.. They give an example of a person who provides arsenic to another who uses it to poison a victim. 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. 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. 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 … o!  Amaca Pty Ltd v Booth  HCA 53; (2011) 246 CLR 36, 62 . However, there were many manufacturers of that drug in the market. As McHugh J explained:. I0 Craven, above n 3,100. l1 H L A Hart and T Honore, Causation in the Law (2nd Ed. There are significant signs that the law is moving towards an acceptance of a necessity test for causation, that is a "but for" test.  Professor Stapleton explains, footnoting March, that courts unfortunately conflate questions that are concerned with the scope of liability for consequences with questions of causation.. On 24 December 2007, she delivered reasons and a certificate, with an award of continuing weekly payments and s60s, ordering employer indemnity on the hospital's suit, and standing over ss 66/67 determinations, eventually $200,000 and $50,000 maxima certificated 12 March 2008. I will skip over this point briefly because it is uncontroversial. Hudson,  3 But neither plaintiff proved factual causation by pointing to possibilities that might have eventuated if circumstances had been different.’ 6 Accordingly, the High Court held that the ‘but for’ test of factual causation was not established in this case. But it does make the liability questions more transparent. 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 various Civil Liability legislation also recognises that there can be possible exceptions to causation. 9. i. Case– Nicolas v. ... 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. The Kuwaiti planes were later destroyed by the coalition bombing of Mosul. This was in the early hours of the mornings. Novus Actus Interveniens
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.! 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? In that case, Mr Burrage provided the heroin used by Mr Banka, a long time drug user. Although this looks like an adoption of the two part 'but for'/'common sense' test outlined by Mason CJ in March v Stramare, it only applies to cases where negligence was not established. In contrast, a scholar or judge using 'bottom up' reasoning starts with the cases and moves from there (usually not very far). The leading decision was given by Mason CJ, with whom Toohey and Gaudron JJ agreed. P, who was driving under the influence of alcohol, drove into the back of the truck. If causation is found to exist, what principles should be applied to determine whether responsibility should be imposed? It is an example where causation is unnecessary. At the start of this paper I mentioned that causation. However, if the question is whether Mr Abraham’s conduct had caused financial loss to Performance Cars then the answer is "no".  But it is misleading to speak of the cause of the fire.  In the jurisprudence of constitutional law, 'top down reasoning' has become a term of derision. , Thirdly, the reasons why the common sense test was adopted in March did not require that test. Remoteness s 5D(1)(b) Contract versus tort – The scope varies – Koufos v Czarnikow ! The same panel of the Rolls Royce had been previously damaged by another wrongdoer who was liable to pay for the repairs.  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. There are two short points of this paper. ... constituted a novus actus interveniens.  H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985) 42. • ‘Alinemarkingtheboundaryofthedamageforwhicha) tortfeasoris)liable)in)negligence)may)be)drawn)either because)the)relevantinjury)is)notreasonably)foreseeable)or 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 … The 'but for' test (March v Stramare) Mere probability of harm may be sufficent to prove causation ... Novus Actus Interveniens (Chapan v Hearse) Medical Novus Intervenes (Mohony v J Kruschich) Egg Shell Skull Rule (Nader v Urban Transit NSW; Kavanagh v Ahktar; Stephenson v Waite Tileman) March v Stramare,  4.   HCA 19; (2013) 250 CLR 375 . , I should emphasise that, unlike some theorists, I do not say that top down reasoning is always illegitimate. LTD. (1991) 171 CLR 506. 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. In D 18.104.22.168, Julian asked only if the person striking the slave was liable. Indeed, the "common sense" approach is not actually "common" sense. 8 CLA (n 1) s 13(1)(a).  They attracted ferocious academic defence. In particular, the Civil Liability Acts in Australia provide for the causation element for liability, when required, to be one of 'necessity' or 'but for' causation. The House of Lords held that Iraqi Airways was liable to pay damages. In Standard Chartered Bank v Pakistan Shipping Corporation (Nos 2 & 4), 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'. Instead, it makes those questions more transparent.  H Scott 'Killing and causing death in Roman law' (2013) 129 LQR 101, 120 -122. These situations have been addressed by the proposition stated by Lord Watson in Wakelin v London & South Western Railway Co that it is sufficient that the plaintiff prove that the negligence of the defendant 'caused or materially contributed to the injury'. , The same "common sense" approach is taken in criminal law. There are significant signs that the law is moving towards an acceptance of a necessity test for causation, that is a "but for" test.  This is an awkward approach. In that case, the appellants were unlawfully detained pending deportation because their detention was under an unlawful blanket policy. 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.. Abraham was not liable to pay damages for a car that had previously been damaged. 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. 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. 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 element is because HC has said this uses the March v Stramare. I will also explain reasons why judges have been reluctant to embrace this meaning. In such cases what may be unclear is the extent to which one of these conjunctive causal factors contributed to that state of affairs. Giving the opinion of the court, Scalia J explained that the expression 'results from' should bear the ordinary causal meaning of 'but for' causation. Mr Banka died from a drug overdose after an extended drug binge including the heroin. For some time, these damages were described as "vindicatory damages". factual causation cannot be proved but the court nevertheless does want to hold the defendant liable. , the common sense approach is, in part, based upon a linguistic error. 10 Wagon Mound (No.2)  AC 617, 633. March v E & MH Stramare Pty Ltd  HCA 12 at para 5 per Mason CJ. March v Stramare (1991) 171 CLR 506
The appeal settled almost on the eve of the hearing. Another example is Performance Cars Ltd v Abraham. Prior to the CLA, March v Stramare was the leading common law case on causation. But it is not immediately obvious that a wrong was committed in Fairchild. Separate from the enquiry into whether a person is a wrongdoer is the enquiry into whether the event which violated another's rights caused loss. I will also explain reasons why judges have been reluctant to embrace this meaning. Take an example derived from the facts in the United States Supreme Court decision in Burrage v United States. 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. FEBRUARY/MARCH 2000. Another example is the tort of deceit.  No employment could be proved to have been necessary for the employee's subsequent mesothelioma. In some cases, liability is imposed despite the absence of causation of loss. Mr Abraham was lucky.  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.. 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.  Burrage v United States (2014) 571 US (forthcoming, 27 January 2014).  That case concerned a statute which contained the phrase 'death …resulted from the use of th[at] substance'. ge using 'bottom up' reasoning starts with the cases and moves from there (usually not very far). An event will only ever be a cause of an outcome if the event is necessary for the outcome. 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. Sometimes the reverse situation to a novus actus occurs, i.e. 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. 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. It has to be based upon a rule that enables the tribunal of fact to make a value judgment that in the circumstances legal responsibility did not attach to the defendant even though his or her act or omission was a necessary precondition of the occurrence of the damage.  March v E & MH Stramare Pty Ltd  HCA 12; (1991) 171 CLR 506, 516. 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'. Judge Posner famously illustrated this idea by reference to concepts of top down and bottom up reasoning. 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. Cook v Lewis.  A "common sense" approach appeals to intuition. 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"? 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. For instance, liability might be denied because there is no duty. Causation of loss is not required because loss is not required. both are negligent. necessary condition) of Mr Cotton’s cancer. I & L Securities v HTW Val uers (2002) 210 CLR 109, at  per Justices Gaudron, Gummow and Hayne. 1.1) Novus Actus Interveniens in relation to Act of God. A majority of the Supreme Court of Canada heldthat both … When the appeal books were received, Lord Hoffmann went in to Lord Rodger's chambers to speak with him about the Roman debate on this question.  Standard Chartered Bank v Pakistan Shipping Corporation (Nos 2 & 4)  1 AC 959. Tort: Causation Element: Novus actus interveniens intoxicated motorcycle driver hits negligently parked van. Baker v Willoughby  AC 476, Adelaide Chemical & Fertilizer Co v Carlyle, Matthews v Chicory Marketing Board (Victoria) (1938) 60 CLR 263, Story v Advance Bank of Australia (1993) 31 NSWLR 722, Medlin v State Government Insurance Commission.  See, for instance, J Stapleton 'Cause-in-Fact and the Scope of Liability for Consequences' (2003) 119 LQR 388. About Court fees including exemptions, deferral & refunds, Under Federal Court Rules 2011, Schedule 3, Pre-judgment & post-judgment interest rates. March v Stramare. '; ''How is it possible to say in what manner the disclosure would have operated on Kay's mind'; 'You cannot weigh the elements by ounces'.  M'Kew v Holland  UKHL 9; SC (HL) 20. I need to look through the multiple causal factors of each party. 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. Must look to the risk prospectively - not retrospectively. " 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. Cook was in the bush.  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. 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. Alternatively, as John Stuart Mill put it, the 'whole cause' includes all necessary conditions.  Campbell v The Queen (1981) WAR 286, 290. Kuwait Airways sued Iraqi Airways for damages for conversion. (1999) 2 AC 22, at page 29 where his Lordship quotes Lord Wilberforce in Alphacell Ltd v Woodward  AC 824 at page 834. 9 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332. A majority of the court, adopting the approach from Burt CJ in Western Australia, 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'.. Baker v Willoughby  AC 467. School University of Technology Sydney; Course Title LAW 71116; Uploaded By nicolecaraya. The expert evidence was that Mr Banka may have died even if he had not taken the heroin. Take an example derived from the facts in the United States Supreme Court decision in. There are a large number of instances where liability is imposed despite the absence of causation. 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. Obvious examples are instances where a defendant owes a debt to a plaintiff. It … The appeal settled almost on the eve of the hearing. However, if the question is whether Mr Abraham’s conduct had caused financial loss to Performance Cars then the answer is "no". 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. I start with the leading causation decision of the High Court of Australia in relation to the law of torts. 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.  L Hoffmann 'Causation' in R Goldberg (ed) Perspectives on Causation (2011) 6 - 7. March v Stramare,  4. That is, causation requires that the outcome would not have occurred "but for" the event. Dr Cherry in Chapman v Hearse). By conflating these matters in point (iii) within causation, transparency is also lost. Listen to casenotes from legal cases from your University course from your computer, ipad or phone. If you convert someone's property you have to pay for it or give it back'..  Royall v The Queen  HCA 27; (1991) 172 CLR 378. You do not have permission to edit this page, for the following reasons: The action you have requested is limited to users in the group: Users. 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. In particular, the. The underlying theme for today’s conference is causation. 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"? PTY. Instead, the lost chance is treated as compensable in itself. A better approach would be for point (iii) also to be treated as a legal rule arising independently of the metaphysics of causation. P sued for negligence. In the case of a debt, no causation of loss is required. - March v (E & M) Stramare Pty Ltd. What is novus actus interveniens? The doctrine of the novus actus interveniens familiar in the field of delict or the law of contract, if it is to be relevant and exculpatory, must involve that the intervening actus is truly novus and [ultroneous] (see, for example the speech of Lord Wright in The Oropesa  p.32 quoted Finlayson v … 7 March v Stramare. March v Stramare Pty Ltd (1990-1991) 171 CLR 506 at page 531. Causation element is because hc has said this uses. The Appellant relied upon the Common Law concept of causation discussed by Deane J in March v. Stramare (E & MH) Pty Ltd 2 where it was said:-“….whether an … Richardson v Mt Druitt Workers Club  NSWSC 31. Mr Abraham was lucky. This decision posed a test for causation which I respectfully submit may be in decline. This is the "common sense" test of causation. In contrast, a scholar or jud. They say that the lawyer, the historian, and the 'plain man would refuse to say that the cause of the fire was the presence of oxygen'. The mere exposure of an employee to the possibility of harm (such as from inhaled asbestosis fibres) might not be wrongful. The first observation is that the analogy with D 22.214.171.124 was apt but Julian was not necessarily asking the same questions as the House of Lords in Fairchild. Find hearing dates & times for all current matters in the FCA and FCC. Register to receive daily court lists by email soon after they are published.  This approach has been applied on many occasions. Facts.  He argues that by abandoning the requirement of causation (but for) in cases of strict liability torts prevents strict liability from becoming meaningless. The discussion of the quantum of liability was different. That meaning is necessity which is applied by a test, as lawyers commonly call it, of "but for". 4 . Lamb v London Borough of Camden 2 All ER 408
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". 10.2.11. He assumed that the reference to "that substance" was a reference to the heroin only. The underlying theme for today’s conference is causation. Iraqi Airways argued that the planes would have been lost to Kuwaiti Airways even if they had not been converted by Iraqi Airways. View source for March v Stramare ← March v Stramare. These damages, to the extent to which they continue to exist, were confined to "constitutional rights. March v Stramare (1991) 105 CLR 506, 509 (Mason CJ); Cf National Insurance CO Ltri v Espagne (1960) 105 CLR 568,592 (Windeyer J). 24 April 1991 . 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.  S Douglas Liability for Wrongful Interferences with Chattels (2011) 203 – 205.  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. 1985) 30-41.  March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 530. , 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. contribution arise only if a connection between Mr Cotton’s inhaling asbestos and his developing cancer was established.! a "common sense" approach to the issue of causation in preference to the "but for" test. 20. 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. Although its genesis is much earlier, the "common sense" approach to causation has been well known in Australia since March v Stramare.  But the contrary result was reached by the United Kingdom Supreme Court in Lumba v Secretary of State for the Home Department. 8 CLA (n 1) s 13(1)(a). It is usually hard to establish that an act is … Suppose that one of the employee plaintiffs in Fairchild had not yet contracted mesothelioma. Dr Cherry in Chapman v Hearse). 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. 9 CLA (n 1) s 13(1)(b). Adams J.  See the cases discussed in K Mason 'What is wrong with top-down legal reasoning' (2004) 78 ALJ 574. 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. I start with the leading causation decision of the High Court of Australia in relation to the law of torts. It amounts to saying that 'causation' embodies two fundamentally different concepts. 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. '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. 4 .  J Varuhas ‘The Concept of "Vindication" in the Law of Torts: Rights, Interests and Damages’ (2014) 34 OJLS 253, 280. Instead, it makes those questions more transparent.  Barker v Corus UK Ltd  UKHL 20;  2 AC 572. 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. 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  QB 625 Lamb v London Borough of Camden 2 All ER 408 Haber v Walker (1963) VR 339 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Haynes v … Such event is the new intervening act _ or novus actus interveniens _, where subsequent event is seen as overtaking the causal connection. As I will explain, this is a very desirable approach. In that case, two hunters carelessly shot at grouses flying out of a bush. 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 need to protect autonomy must be the factor that justifies the latter extension. Presented at the Commercial Conference of the Supreme Court of Victoria/University of Melbourne, Banco Court. 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'.  Wakelin v London & South Western Railway Co (1886) 12 App Cas 41, 47.  I doubt whether this is correct. The negligence of a rescuing party is not a novus actus (i.e. My presentation today draws heavily from that article, although some arguments are refined. 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". An example they gave is where a fire has broken out. 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’. You must confirm your e-mail address before editing pages. 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. It is clearly reasonably foreseeable that a rescue by helicopter would have to occur if a walker was injured. In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. In March v Stramare itself, the sense of the result was not common between the High Court and the Full Court of the Supreme Court of South Australia.  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. Further discussion taking the common sense approach is required (March v Stramare). I0 Craven, above n 3,100. l1 H L A Hart and T Honore, Causation in the Law (2nd Ed. 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. Or, to put the proposition negatively, the event is not a cause of an outcome if the outcome would have happened anyway. 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. The Court of Appeal was not concerned with whether the plaintiff would nevertheless have lent the money but for the deceit. , 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. 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