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. as Dixon J of the Victorian Supreme Court recently observed with great cogency, the 'common sense' approach is not a legal test. 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. [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 (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). For some time, these damages were described as "vindicatory damages". March v E & MH Stramare Pty Ltd [1991] HCA 12 at para 15 per McHugh J for a similar list. Cook v Lewis. Although its genesis is much earlier, the "common sense" approach to causation has been well known in Australia since. Dr Cherry in Chapman v Hearse). Prior to the CLA, March v Stramare was the leading common law case on causation. March v Stramare, [27] 5. I will also explain reasons why judges have been reluctant to embrace this meaning. 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. Lamb v London Borough of Camden [1981] QB 625 He also relied on statements in a prospectus that were fraudulently made by the directors. The second point is to emphasise that this apparently simple test is not a simple solvent for the question of whether liability should be imposed. 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. Could he still have sued his employer for exposing him to the possibility of mesothelioma? Hudson, [103] 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. * The ship, Wagon Mound was taking furnace oil to … 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. 10.2.11. 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. Richardson v Mt Druitt Workers Club [2011] NSWSC 31. [3] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378. [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'. The first is to suggest that causation has only one meaning. 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. 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. In such cases what may be unclear is the extent to which one of these conjunctive causal factors contributed to that state of affairs. Facts: * Two separate plaintiffs for both of these cases. [44] It may be that this rule is now too well established to be disturbed. One such case came before the House of Lords which involved a situation where multiple employers had exposed an employee to asbestos. 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 … The brilliant Alan Rodger instantly recalled Digest 9.2.11.2 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.[49]. It amounts to saying that 'causation' embodies two fundamentally different concepts. 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. [11] H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985). [19] H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985) 42. The Kuwaiti planes were later destroyed by the coalition bombing of Mosul. Novus Actus Interveniens Novus Actus Interveniens. Instead, the [40] Standard Chartered Bank v Pakistan Shipping Corporation (Nos 2 & 4) [2003] 1 AC 959. ... March v E & M H Stramare Pty Ltd (1991) 171 CLR 506. Thus, if the 'but for' test has been met, but the outcome is disliked it cannot be used to amend it. I0 Craven, above n 3,100. l1 H L A Hart and T Honore, Causation in the Law (2nd Ed. Another difference between D 9.2.11.2 and Fairchild is that in Fairchild the House of Lords was asked whether each defendant was liable for all losses arising from mesothelioma. Contributory negligence - If the plaintiff is negligent this may satisfy the court that the ‘chain of causation’ between the defendant’s breach of contract and the plaintiff’s loss has been broken ie. But it is not immediately obvious that a wrong was committed in Fairchild. The complainant, Mr Baker, was a pedestrian who had been knocked down by the defendant driving a car in September 1964. Take an example derived from the facts in the United States Supreme Court decision in Burrage v United States. As McHugh J explained:[1]. 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. In Sindell v Abbott Laboratories 607 P 2d 924 (1980) the plaintiff consumed medication that caused bodily injury due to its negligent manufacture. Dr Cherry in Chapman v Hearse). The concept of 'common sense' causation arguably would not have survived without the powerful support of Professors Hart and Honoré. I need to look through the multiple causal factors of each party. 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'. On an application of the "but for" test, the answer to the causal inquiry was simple. Judge Posner famously illustrated this idea by reference to concepts of top down and bottom up reasoning. A better approach would be for point (iii) also to be treated as a legal rule arising independently of the metaphysics of causation. 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. [37]In that case, the plaintiff lent money to a company due to his mistaken belief that the loan was secured by a charge. 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. 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