the Sparnons: see March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Medlin v State Government Insurance Commission (1 995) 182 CLR 1. [41] Standard Chartered Bank v Pakistan Shipping Corporation [2003] 1 AC 959, 967 [16]. negligentia) is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. 1.1.1.1. A better approach would be for point (iii) also to be treated as a legal rule arising independently of the metaphysics of causation. As McHugh J explained:[1]. See also Kavanagh v Akhtar, Imbree v McNeilly, and Tame v NSW. The Court of Appeal was not concerned with whether the plaintiff would nevertheless have lent the money but for the deceit. Stramare. March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 516 (Mason CJ), 523 (Deane J). 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. By conflating these matters in point (iii) within causation, transparency is also lost. Another example is Performance Cars Ltd v Abraham. FC can still be established if appropriate case in accordance with established principles – court to consider if liability should be imposed (WA. In D 9.2.11.2, Julian asked only if the person striking the slave was liable. This decision posed a test for causation which I respectfully submit may be in decline. It amounts to saying that 'causation' embodies two fundamentally different concepts. I start with the leading causation decision of the High Court of Australia in relation to the law of torts. J Fleming The Law of Torts ( 3rd Ed, Law Book Co, Sydney, 1965) p 231. Orix Australia Corporation Ltd v Moody Kendall & Partners Pty Ltd [2005] NSWSC 1209 Mason CJ: 1.1.1. The decision should remind lower courts that the common law position in March v. E & MH Stramare Pty Limited that causation is “ultimately a matter of common sense” must be viewed subject to … [44] It may be that this rule is now too well established to be disturbed. Negligence . Pages 58. I start with the leading causation decision of the High Court of Australia in relation to the law of torts. March v Stramare had adopted an approach to causation that was ‘ultimately a matter of common sense’, involving an element of value judgment. First, as Dixon J of the Victorian Supreme Court recently observed with great cogency, the 'common sense' approach is not a legal test. [24] [2013] HCA 19; (2013) 250 CLR 375 [16]. March v Stramare (1991) 171 CLR 506. 3165 March v Stramare Pty Ltd 1991 171 CLR 505 2710 33185 Mardorf Peach Co Ltd. 3165 march v stramare pty ltd 1991 171 clr 505 2710. 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. In R v Kennedy (No 2) [2007] UKHL 38, the accused prepared a syringe of heroin and gave it to the victim. Stramare). March v . asserted that 'cause' in everyday speech means more than a 'but for' or necessary condition. Similarly, the type of damage was patently foreseeable, another point conceded by Apand: see Overseas Tankship (UK) Ltd v Plaintiff’s contributory negligence does not cut off defendant’s liability. [37]In that case, the plaintiff lent money to a company due to his mistaken belief that the loan was secured by a charge. 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. 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. [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]. The patient, if properly warned, would have had the operation at another time, probably with a … The underlying theme for today’s conference is causation. Community Welfare (1992) 176 CLR 408. 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 , 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. Facts. 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". That is, causation requires that the outcome would not have occurred "but for" the event. Mr Abraham was lucky. The leading authority in this area is March v Stramare: 1. [38] This approach has been applied on many occasions. Could he still have sued his employer for exposing him to the possibility of mesothelioma? 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. 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. 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 … 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 the language used by the High Court of Australia, the test is one of causation or material contribution. 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. 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. The recent decision of the High Court of Australia in March v Stramare (1991) 171 CLR 506 was in an action in tort. But then the same concept of causation permits an outcome to be treats as caused by an event even if the relevant outcome would have been exactly the same without the event. 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. 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. 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. 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. [2] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515. In R v Kennedy (No 2) [2007] UKHL 38, the accused prepared a syringe of heroin and gave it to the victim. [8] See the cases discussed in K Mason 'What is wrong with top-down legal reasoning' (2004) 78 ALJ 574. Mr Banka died from a drug overdose after an extended drug binge including the heroin. , 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. The concept of 'common sense' causation arguably would not have survived without the powerful support of Professors Hart and Honoré. March v . As the High Court said of the New South Wales Civil Liability legislation in Wallace v Kam,[24] it ‘involves nothing more or less than the application of a "but for" test of causation’. Instead, it makes those questions more transparent. 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. Or, to put the proposition negatively, the event is not a cause of an outcome if the outcome would have happened anyway. 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. 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. 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"? 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. Using the “common sense” test of causation of March v Stramare (E & M H) Pty Ltd, the High Court held that the patient’s harm was caused by the doctor’s failure to warn of risk rather than a failure with the actual care provided. [27] Eg Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328. About Court fees including exemptions, deferral & refunds, Under Federal Court Rules 2011, Schedule 3, Pre-judgment & post-judgment interest rates. The classic statement of this position in relation to deceit is Edgington v Fitzmaurice. I will also explain reasons why judges have been reluctant to embrace this meaning. Presented at the Commercial Conference of the Supreme Court of Victoria/University of Melbourne, Banco Court. ON 24 APRIL 1991, the High Court of Australia delivered March v Stramare (E & MH) Pty Ltd[1991] HCA 12; (1991) 171 CLR 506; (1991) 9 BCL 215 (24 April 1991). 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'. [6] Instead, the common sense approach encourages a pure form of top down reasoning. [7] In the jurisprudence of constitutional law, 'top down reasoning' has become a term of derision. 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. March v E & MH Stramare Pty Ltd [1991] HCA 12 at para 5 per Mason CJ. [46] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516-517. An event will only ever be a cause of an outcome if the event is necessary for the outcome. [20] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516. 1.1.1.3. 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. By identifying the single but-for causal rule, courts are forced to confront the reasons for imposition of liability for an event even if the event was not necessary for the outcome. Stanford Libraries' official online search tool for books, media, journals, databases, government documents and more. [33] Iraqi Airways committed the tort of conversion by taking possession of planes belonging to Kuwait Airways. 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'. Suppose that one of the employee plaintiffs in Fairchild had not yet contracted mesothelioma. That meaning is necessity which is applied by a test, as lawyers commonly call it, of "but for". [48] Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32. If you convert someone's property you have to pay for it or give it back'.[35]. Alternatively, as John Stuart Mill put it, the 'whole cause' includes all necessary conditions. MBF Australia v Malouf [2008] NSWCA 214 . 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). That statute described an act of an accused person 'causing the death charged' committed in particular circumstances. [38] Edgington v Fitzmaurice (1885) 29 Ch 459, 483. ON 24 APRIL 1991, the High Court of Australia delivered March v Stramare (E & MH) Pty Ltd[1991] HCA 12; (1991) 171 CLR 506; (1991) 9 BCL 215 (24 April 1991). March v Stramare (1991) 171 CLR 506 Harvey v PD (2004) 59 NSWLR 639 The Respondent, PD, was a patient of the Alpha Medical Centre (the Centre) from October 1997 until February On 16 November 1998, she participated in a joint medical consultation with her FH. 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]. 1.1.1.2. Lyne-Pirkis v Jones [1969] 1 WLR 1293, cited March v E. & M. H. Stramare Pty Ltd & Anor (1991) 171 CLR 506; [1991] HCA 12, cited Marks v GIO Australia (1998) 196 CLR 494; [1998] HCA 69, cited Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274; [1988] FCA 413, cited N E Perry Pty Ltd v Judge (2002) 84 SASR 86; [2002] SASC [15] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516. These damages, to the extent to which they continue to exist, were confined to "constitutional rights. The 'but for' criterion of causation proved to be troublesome in various situations in which multiple acts or events led to the plaintiff's injury,[46] for example, where the development of a particular medical condition was the result of multiple conjunctive causal factors. The House of Lords reached the same conclusion as the Romans and held all employers fully liable in solidum. the Sparnons: see March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Medlin v State Government Insurance Commission (1 995) 182 CLR 1. 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. The Court of Appeal rightly said that Mr Abraham was a wrongdoer. As McHugh J explained: However, this approach by McHugh J did not command the support of the other members of the High Court. Community Welfare (1992) 176 CLR 408. However, if the question is whether Mr Abraham’s conduct had caused financial loss to Performance Cars then the answer is "no". 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 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? 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". The argument failed. The concept of 'common sense' causation arguably would not have survived without the powerful support of Professors Hart and Honoré. [31] In Australia, a case raising similar issues was last month given special leave to appeal to the High Court of Australia.[32]. The discussion of the quantum of liability was different. Hobson v Taylor [2019] QCA 265 . If causation is found to exist, what principles should be applied to determine whether responsibility should be imposed? An act cannot be considered an intervening act (which b… In Standard Chartered Bank v Pakistan Shipping Corporation (Nos 2 & 4),[40] 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'. 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. March v E & MH Stramare Pty Ltd - [1991] HCA 12 - March v E & MH Stramare Pty Ltd (24 April 1991) - [1991] HCA 12 (24 April 1991) (Mason C.J., Deane, Toohey, Gaudron and McHugh JJ.) [39] Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215, 251. By contrast, section 5D(1) seemingly did not allow for that approach. Lyne-Pirkis v Jones [1969] 1 WLR 1293, cited March v E. & M. H. Stramare Pty Ltd & Anor (1991) 171 CLR 506; [1991] HCA 12, cited Marks v GIO Australia (1998) 196 CLR 494; [1998] HCA 69, cited Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274; [1988] FCA 413, cited N E Perry Pty Ltd v Judge (2002) 84 SASR 86; [2002] SASC 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'. 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. 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