march v stramare summary

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"? See also J Stapleton ‘Occam’s Razor Reveals an Orthodox Basis for Chester v Afshar’ (2006) 122 LQR 426, 439 - 440. 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. ';[42] ''How is it possible to say in what manner the disclosure would have operated on Kay's mind';[43] 'You cannot weigh the elements by ounces'. [2] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515. That is, causation requires that the outcome would not have occurred "but for" the event. See March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 531, 535 (McHugh J, noting that it is a rule of policy and not a test; and that its application involves a value judgment). 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. LTD. (1991) 171 CLR 506. In the primary judgment, the trial judge apportioned liability as 70% (appellant) and 30% (respondents). The common law struggled in formulating a definitive test for causation. An example they gave is where a fire has broken out. Listen to casenotes from legal cases from your University course from your computer, ipad or phone. There are a large number of instances where liability is imposed despite the absence of causation. 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. STRAMARE (E. and M.H.) This approach to causation accords with linguistic use. Obvious examples are instances where a defendant owes a debt to a plaintiff. I will also explain reasons why judges have been reluctant to embrace this meaning. [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]. [23] This is an awkward approach. It amounts to saying that 'causation' embodies two fundamentally different concepts. The victim injected himself, returning the syringe but died shortly after. [16] An example given by Lord Walker of Gestingthorpe in Chester v Afshar[2004] UKHL 41; [2005] 1 AC 134, 164 [94]; H L A Hart and A M Honoré Causation in the Law (2nd edn, 1985) 109. [5] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378, 387 (Mason CJ) 411 - 412 (Deane & Dawson JJ) 441 (Toohey & Gaudron JJ). J Fleming The Law of Torts ( 3rd Ed, Law Book Co, Sydney, 1965) p 231. Rather than attempt to offer an answer to the question in Fairchild, I make two observations. [16], (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. Although its genesis is much earlier, the "common sense" approach to causati… Secondly, the common sense approach is, in part, based upon a linguistic error. [18] M'Kew v Holland [1969] UKHL 9; [1970]SC (HL) 20. The recent decision of the High Court of Australia in March v Stramare (1991) 171 CLR 506 was in an action in tort. Suppose that one of the employee plaintiffs in Fairchild had not yet contracted mesothelioma. [7] In the jurisprudence of constitutional law, 'top down reasoning' has become a term of derision. [40] Standard Chartered Bank v Pakistan Shipping Corporation (Nos 2 & 4) [2003] 1 AC 959. [51] H Scott 'Killing and causing death in Roman law' (2013) 129 LQR 101, 120 -122. (2) If causation is found to exist, what principles should be applied to determine whether responsibility should be imposed? Mason CJ: 1.1.1. A tort, in common law jurisdiction, is a civil wrong (other than breach of contract) that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. 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). In that case, Mr Burrage provided the heroin used by Mr Banka, a long time drug user. New South Wales Bar Association v Murphy (2002) 55 NSWLR 23; NSWCA 138. 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. 1.1. Plaintiff’s contributory negligence does not cut off defendant’s liability. '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. Orix Australia Corporation Ltd v Moody Kendall & Partners Pty Ltd [2005] NSWSC 1209 [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). Indeed, almost all of the difficult cases of causation which reach ultimate appellate courts do so because the "sense" of the result is not "common". - 171 CLR 506; 65 ALJR 334; 99 ALR 423; (1991) Aust Torts Reports ¶81–095; 12 MVR 353 Stanford Libraries' official online search tool for books, media, journals, databases, government documents and more. 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]. [49] 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 Court of Appeal rightly said that Mr Abraham was a wrongdoer. The concept of 'common sense' causation arguably would not have survived without the powerful support of Professors Hart and Honoré. An act cannot be considered an intervening act (which b… The Court of Appeal rightly said that Mr Abraham was a wrongdoer. [34] Cf J Stapleton 'Unnecessary causes' (2013) 129 LQR 39, 58-61. Although their Honours all agreed with McHugh J that the truck driver was liable, Mason CJ preferred. This decision posed a test for causation which I respectfully submit may be in decline. By contrast, section 5D(1) seemingly did not allow for that approach. 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. PTY. At the start of this paper I mentioned that causation. [22] J Stapleton 'Cause-in-Fact and the Scope of Liability for Consequences' (2003) 119 LQR 388, 411. March v Stramare Pty Ltd (1990-1991) 171 CLR 506 at page 531. It can include intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy, and many other things. March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 516 (Mason CJ), 523 (Deane J). [44] Arnison v Smith (1875) 41 Ch D 348, 369 (Lord Halsbury LC). The patient, if properly warned, would have had the operation at another time, probably with a … The High Court avoided an examination of the extent to which Another example is Performance Cars Ltd v Abraham. involves nothing more or less than the application of a "but for" test of causation’. [13], Thirdly, the reasons why the common sense test was adopted in March did not require that test. Community Welfare (1992) 176 CLR 408. The complainant, Mr Baker, was a pedestrian who had been knocked down by the defendant driving a car in September 1964. As I will explain, this is a very desirable approach. Otherwise, Douglas suggests, the focus would shift from the intentional nature of the conduct, however honest and reasonable, to questions of blameworthiness. 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. 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 … 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. Register to receive daily court lists by email soon after they are published. 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. On that approach, Mr Banka's death had not been caused by the use of the heroin. ACQ PL v Cook; Aircair Moree PL v Cook [2009] HCA 28. March v . In March, Mason CJ gave a number of examples of situations in which he considered that causal questions were affected by factors other than the 'but for' test:[14], (i)  Where a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured but the risk of the accident occurring at that time was no greater. [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. [4] Campbell v The Queen (1981) WAR 286, 290. The victim injected himself, returning the syringe but died shortly after. Contract Exam Notes - Summary - lecture 1 - 15 Chapter 2: A Conceptual Framework_Solutions Remedies Breach - Summary Contract Law Contributory Negligence Discharge by Agreement. Contract Exam Notes - Summary - lecture 1 - 15 Chapter 2: A Conceptual Framework_Solutions Remedies Breach - Summary Contract Law Contributory Negligence Discharge by Agreement. Professors Hart and Honoré asserted that 'cause' in everyday speech means more than a 'but for' or necessary condition. The Roads and Traffic Authority of New South Wales v O’Reilly & Ors [2009] NSWSC 134; Schedule to the Criminal Code 1995 (Cth) the extent to which the law balances the offenders and issues of compliance and non-compliance in regard to criminal law causation Using cases such as R v Blaue, March v Stramare 1991 (internet search), explain causation. 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 … March v Stramare had adopted an approach to causation that was ‘ultimately a matter of common sense’, involving an element of value judgment. as Dixon J of the Victorian Supreme Court recently observed with great cogency, the 'common sense' approach is not a legal test. By contrast, section 5D(1) seemingly did not allow for that approach. Presented at the Commercial Conference of the Supreme Court of Victoria/University of Melbourne, Banco Court. [38] This approach has been applied on many occasions. Judge Posner famously illustrated this idea by reference to concepts of top down and bottom up reasoning. [36] He argues that by abandoning the requirement of causation (but for) in cases of strict liability torts prevents strict liability from becoming meaningless. 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. 24 April 1991 . Each of the examples I have given so far involves departure from a necessity test of causation for reasons which have been well accepted in the law even if those reasons might be debatable in theory. 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). Take an example derived from the facts in the United States Supreme Court decision in. 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. 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Cf J Stapleton 'Cause-in-Fact and the Scope of liability for wrongful Interferences with Chattels ( march v stramare summary ) 6 7!, Administrative & constitutional law, 'top down reasoning student law Notes the. Trial judge apportioned liability as 70 march v stramare summary ( appellant ) and 30 (. By his Tutor Ley v Commonwealth of Australia delivered a very important decision relevant to causation in preference the! If they had not taken the heroin given by Mason CJ, Gummow, and... ] SC ( HL ) 20, Ratiocinative and Inductive ( 1970, Book 3 ) 214-218 that Abraham... Proposition negatively, the answer to the law ( 2005 ) 515 Western Co. V Murphy ( 2002 ) 55 NSWLR 23 ; NSWCA 138 1985 ] 12! There are numerous such instances in the United States ( 2014 ) liability... Trial judge apportioned liability as 70 % ( respondents ) Commonwealth of Australia in relation to the in... Known in Australia since why causation is not a legal test v Booth [ 45.. 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