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. Lord Hoffmann, who sat on the court, later described the decision of the House of Lords as being based on the notion that 'it was not necessary that the conversion should have caused the loss. Professor Stapleton considers that point (iii) is an example of causation, although one which does not require necessity.  So, for instance, in M'Kew v Holland 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'. Cook v Lewis. 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 … 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. In Royall v The Queen, 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). 9 CLA (n 1) s 13(1)(b). 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. March v Stramare (1991) 105 CLR 506, 509 (Mason CJ); Cf National Insurance CO Ltri v Espagne (1960) 105 CLR 568,592 (Windeyer J).  Professor Stapleton explains, footnoting March, that courts unfortunately conflate questions that are concerned with the scope of liability for consequences with questions of causation.. Facts: * Two separate plaintiffs for both of these cases. Causation element is because HC has said this uses the March v Stramare. Presented at the Commercial Conference of the Supreme Court of Victoria/University of Melbourne, Banco Court. The Court of Appeal rightly said that Mr Abraham was a wrongdoer.  J Stapleton 'Cause-in-Fact and the Scope of Liability for Consequences' (2003) 119 LQR 388, 411. 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. 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. 6 . Adams J. - March v (E & M) Stramare Pty Ltd. What is novus actus interveniens? 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"? See also J Stapleton ‘Occam’s Razor Reveals an Orthodox Basis for Chester v Afshar’ (2006) 122 LQR 426, 439 - 440.  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. PTY. Another example is the tort of deceit.  March v E & MH Stramare Pty Ltd  HCA 12; (1991) 171 CLR 506, 517 - 518. Secondly, the common sense approach is, in part, based upon a linguistic error. It …  H Scott 'Killing and causing death in Roman law' (2013) 129 LQR 101, 120 -122. These damages, to the extent to which they continue to exist, were confined to "constitutional rights. 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. 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. 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. I0 Craven, above n 3,100. l1 H L A Hart and T Honore, Causation in the Law (2nd Ed. 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. But it does make the liability questions more transparent. The same panel of the Rolls Royce had been previously damaged by another wrongdoer who was liable to pay for the repairs. In that case, two hunters carelessly shot at grouses flying out of a bush. 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.. The Kuwaiti planes were later destroyed by the coalition bombing of Mosul. Adelaide Chemical & Fertilizer Co v Carlyle (1940) 64 CLR 514
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. factual causation cannot be proved but the court nevertheless does want to hold the defendant liable. 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'. A majority of the Supreme Court of Canada heldthat both … The need to protect autonomy must be the factor that justifies the latter extension. Further discussion taking the common sense approach is required (March v Stramare). • ‘Alinemarkingtheboundaryofthedamageforwhicha) tortfeasoris)liable)in)negligence)may)be)drawn)either because)the)relevantinjury)is)notreasonably)foreseeable)or 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. 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". Listen to casenotes from legal cases from your University course from your computer, ipad or phone. Professors Hart and Honoré also argued that novus actus interveniens is an example where a necessary event is not a cause. In such cases what may be unclear is the extent to which one of these conjunctive causal factors contributed to that state of affairs. 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. 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 is recognised that one example of an exception to the ―but for‖ test of causation is a situation where the deliberate act of the plaintiff or another does something which makes the consequences of the wrongful act more serious than they otherwise would have been: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. The first is to suggest that causation has only one meaning. 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'.. 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. In particular, the.  Amaca Pty Ltd v Booth  HCA 53; (2011) 246 CLR 36, 62 . 27 Allianz ... , “effective cause” and “novus actus”.  W Gummow 'Conclusion' in S Degeling and J Edelman (eds) Equity in Commercial Law (2005) 515. This amounts to a “necessary condition” of the harm under s 5D(1)(a) of the Civil Liability Act 2002 (NSW).  He argues that by abandoning the requirement of causation (but for) in cases of strict liability torts prevents strict liability from becoming meaningless. 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. The underlying theme for today’s conference is causation. 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).  See, for instance, J Stapleton 'Cause-in-Fact and the Scope of Liability for Consequences' (2003) 119 LQR 388. The leading decision was given by Mason CJ, with whom Toohey and Gaudron JJ agreed.  No employment could be proved to have been necessary for the employee's subsequent mesothelioma.  Reynell v Sprye (1852) 1 De GM & G 660, 708-709; (1852) 42 ER 710, 728 - 729. The difficult question then is why causation of loss is unnecessary for intentional wrongdoing that deprives a person of possession. Instead, it makes those questions more transparent. Using the ‘but for’ test, as established in March v Stramare, it can be argued that the spreading of disease would not occur but for the prisons failing to prevent the smuggling in of needles. It is an example where causation is unnecessary. View source for March v Stramare ← March v Stramare. Find hearing dates & times for all current matters in the FCA and FCC.  Standard Chartered Bank v Pakistan Shipping Corporation  1 AC 959, 967 . Mr Banka died from a drug overdose after an extended drug binge including the heroin. Student Law Notes is the perfect resource for Law Students on the go! The earliest cases that justified the absence of a causal rule did so on the basis that it was impossible to enquire into contributions to a person's mind: '[w]ho can say that the untrue statement may not have been precisely that which turned the scale in the mind of the party to whom it was addressed? Instead, it makes those questions more transparent. The brilliant Alan Rodger instantly recalled Digest 18.104.22.168 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.. * It was disproved by Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (1961) that used the foresee-ability test. 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. 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. 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'.  Royall v The Queen  HCA 27; (1991) 172 CLR 378, 387 (Mason CJ) 411 - 412 (Deane & Dawson JJ) 441 (Toohey & Gaudron JJ). 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. (1999) 2 AC 22, at page 29 where his Lordship quotes Lord Wilberforce in Alphacell Ltd v Woodward  AC 824 at page 834. 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'.  Gould v Vaggelas  HCA 75; (1985) 157 CLR 215, 251. Prior to the CLA, March v Stramare was the leading common law case on causation. *March v Stramare - Causation is determined by applying the 'but for' test as well as common sense principles to the facts of the case. I will skip over this point briefly because it is uncontroversial. 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? Bennett v Minister of Community Welfare (1992) 176 CLR 408
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. On an application of the "but for" test, the answer to the causal inquiry was simple. 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. In 2012, I was listed to sit on an appeal where this question had been raised. 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.  Instead, the common sense approach encourages a pure form of top down reasoning.  Eg Attorney General of Trinidad and Tobago v Ramanoop  1 AC 328. I0 Craven, above n 3,100. l1 H L A Hart and T Honore, Causation in the Law (2nd Ed. This decision posed a test for causation which I respectfully submit may be in decline. The concept of 'common sense' causation arguably would not have survived without the powerful support of Professors Hart and Honoré. illustrated this idea by reference to concepts of top down and bottom up reasoning. Only mention Evidentiary gap for this section- Bonnington. 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. Tort: Causation Element: Novus actus interveniens intoxicated motorcycle driver hits negligently parked van. That s… ... - 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. 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 …  Campbell v The Queen (1981) WAR 286, 290. Medlin v State Government Insurance Commission (1995) 182 CLR 1
However, this approach by McHugh J did not command the support of the other members of the High Court. Including Bankruptcy, Corporations, Migration, Administrative & Constitutional Law and Human Rights; Communicating with the Court; Expert witnesses. They give an example of a person who provides arsenic to another who uses it to poison a victim. When they were in Iraq they were held by Iraqi Airways. LTD. (1991) 171 CLR 506.  Gunnersen v Henwood  VSC 440 . Take an example derived from the facts in the United States Supreme Court decision in. " 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.  Cf J Stapleton 'Unnecessary causes' (2013) 129 LQR 39, 58-61. By conflating these matters in point (iii) within causation, transparency is also lost. NAI Subsequent Negligent conduct by P March v Stramare (1991) 171 CLR 506 D negligent in parking his car in the middle of the road - it was reasonably foreseeable ‘in the ordinary course of things’ that drivers, drunk or sober might drive into the back of it Where the subsequent event is the very thing that the D should have taken reasonable care to guard against then the subsequent event is not regarded as a …  Fernando by his Tutor Ley v Commonwealth of Australia & Anor  HCATrans 190 (14 August 2015).  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. There were multiple (necessary) causes.  March v E & MH Stramare Pty Ltd  HCA 12; (1991) 171 CLR 506, 516 – 519. Baker v Willoughby  AC 467. 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.  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. However, if the question is whether Mr Abraham’s conduct had caused financial loss to Performance Cars then the answer is "no". Iraqi Airways argued that the planes would have been lost to Kuwaiti Airways even if they had not been converted by Iraqi Airways. The High Court unanimously held that the truck driver and his employer were liable. It is clearly reasonably foreseeable that a rescue by helicopter would have to occur if a walker was injured.  It may be that this rule is now too well established to be disturbed. 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 … March v Stramare,  4.  This approach has been applied on many occasions. o! For instance, liability might be denied because there is no duty. 28 Travel Compensation Fund v Tambree. , 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. 8 CLA (n 1) s 13(1)(a). 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.  Smith v Kay (1859) 7 HLC 750, 759; (1859) 11 ER 299, 303. The complainant, Mr Baker, was a pedestrian who had been knocked down by the defendant driving a car in September 1964. All of them need to be justified. March v Stramare,  5. Dr Cherry in Chapman v Hearse). The relevant event was "use of a substance, namely heroin only" and the relevant outcome was "death". Like many other examples considered below, it requires justification for why causation is either replaced by a different rule, or disregarded. 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". , (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.  Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 & 5)  2 AC 883. 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