Student Law Notes is the perfect resource for Law Students on the go! [14] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516 – 519. Another example is the tort of deceit. Negligence (Lat. [34] Cf J Stapleton 'Unnecessary causes' (2013) 129 LQR 39, 58-61. That characterisation process involves normative questions. criteria test (March v Stramare (1991) 171 CLR 506, 533; Alexander v Cambridge Credit Corp Ltd (1987) 9 NSWLR 310, 358) The ‘but for’ test should only be used as a guide and that the ultimate question was whether ‘as a matter of commonsense, the relevant act or omission was a cause’ of the loss (Alexander v Cambridge Credit [7] 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. 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 holding that the respondent's negligent preparation and provision of a false section 32 statement did not cause the whole of the appellant's loss the Court did not apply, alternatively, misconceived and misapplied the principles stated in March v. E & MH Stramare Pty Limited (1991) 171 CLR 506. Take an example derived from the facts in the United States Supreme Court decision in. An example they gave is where a fire has broken out. The appellant driving his vehicle, collided with it while under the influence of alcohol. [18] M'Kew v Holland [1969] UKHL 9; [1970]SC (HL) 20. In particular, it is unlikely that anyone would claim that A caused B if A made no difference to whether or not B occurred. [45] Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36, 62 [70]. Indeed, the development of the common law always requires some departure from pure 'bottom up' reasoning. For instance, in Gould v Vaggelas,[39] Brennan CJ spoke of the need for a misrepresentation to be 'one of the real inducements to the plaintiff to do whatever caused his loss'. March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 and Bennett v Minister of . In holding that the respondent's negligent preparation and provision of a false section 32 statement did not cause the whole of the appellant's loss the Court did not apply, alternatively, misconceived and misapplied the principles stated in March v. E & MH Stramare Pty Limited (1991) 171 CLR 506. (3) If causation is not found to exist, should responsibility be imposed in any event? [26] Performance Cars Ltd v Abraham [1962] 1 QB 33. 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. Hobson v Taylor [2019] QCA 265 . [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. 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'. [47] Wakelin v London & South Western Railway Co (1886) 12 App Cas 41, 47. A better answer might be to say that the law's concern with individual autonomy is such that a fraudster will be liable for losses that he or she has caused, or losses to which he or she has contributed. ACQ PL v Cook; Aircair Moree PL v Cook [2009] HCA 28. The expert evidence was that Mr Banka may have died even if he had not taken the heroin. 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. , 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. [44] It may be that this rule is now too well established to be disturbed. 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 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. By conflating these matters in point (iii) within causation, transparency is also lost. 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. MBF Australia v Malouf [2008] NSWCA 214 . 1.1.1.3. One possible answer, although not without difficulty, is provided by Dr Douglas. The leading decision was given by Mason CJ, with whom Toohey and Gaudron JJ agreed. On 3 March 2010 the High Court of Australia delivered a very important decision relevant to causation in lung cancer cases. 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). [17] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 517 - 518. However, if the question is whether Mr Abraham’s conduct had caused financial loss to Performance Cars then the answer is "no". Applicable common law: Chapman: Original tort feaser’s (defendant) liability is preserved where original tort feaser foreseeably exposed the plaintiff to inadvertent negligence of a 3rd party (or plaintiff’s own inadvertence). An act cannot be considered an intervening act (which b… First, as Dixon J of the Victorian Supreme Court recently observed with great cogency, the 'common sense' approach is not a legal test. [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. [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'. Indeed, the "common sense" approach is not actually "common" sense. In some cases, liability is imposed despite the absence of causation of loss. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. Studylists correlate. 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'. Alternatively, as John Stuart Mill put it, the 'whole cause' includes all necessary conditions. There are significant signs that the law is moving towards an acceptance of a necessity test for causation, that is a "but for" test. 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. Stramare. [27] They attracted ferocious academic defence. ge using 'bottom up' reasoning starts with the cases and moves from there (usually not very far). [8] See the cases discussed in K Mason 'What is wrong with top-down legal reasoning' (2004) 78 ALJ 574. Amaca Pty Ltd (under NSW administered winding up) v Booth(2011) 283 ALR 461; 86 ALJR 172; [2011] HCA 53 at [47] per French CJ. A 'read' is counted each time someone views a publication summary (such as the title, abstract, and list of authors), clicks on a figure, or views or downloads the full-text. 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]. (1999) 2 AC 22, at page 29 where his Lordship quotes Lord Wilberforce in Alphacell Ltd v Woodward [1972] AC 824 at page 834. March v Stramare (E & M H) Pty Ltd [1991] HCA 12. , the common sense approach is, in part, based upon a linguistic error. March v . [36] S Douglas Liability for Wrongful Interferences with Chattels (2011) 203 – 205. Applicable common law: Chapman: Original tort feaser’s (defendant) liability is preserved where original tort feaser foreseeably exposed the plaintiff to inadvertent negligence of a 3rd party (or plaintiff’s own inadvertence). This is the "common sense" test of causation. The concept of 'common sense' causation arguably would not have survived without the powerful support of Professors Hart and Honoré. 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. [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. [13] J S Mill A System of Logic, Ratiocinative and Inductive (1970, Book 3) 214-218. [52] Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572. [30] [2011] UKSC 12; [2012] 1 AC 245, [99]- [101] (Lord Dyson JSC) [222]-[237] (Lord Collins) [253]-[256] (Lord Kerr) [335] (Lord Phillips) [361] (Lord Brown). [37]In that case, the plaintiff lent money to a company due to his mistaken belief that the loan was secured by a charge. The appeal settled almost on the eve of the hearing. On 3 March 2010 the High Court of Australia delivered a very important decision relevant to causation in lung cancer cases. The victim injected himself, returning the syringe but died shortly after. The 'but for' test fails on two accounts - cases which involve multiple causes and cases in which there is an intervening act. 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'. 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. 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. 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". Lyne-Pirkis v Jones [1969] 1 WLR 1293, cited March v E. & M. H. 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