- March v (E & M) Stramare Pty Ltd. What is novus actus interveniens? I & L Securities v HTW Val uers (2002) 210 CLR 109, at [56] per Justices Gaudron, Gummow and Hayne. 8 CLA (n 1) s 13(1)(a). Mr Abraham was found to have carelessly driven into the Rolls Royce owned by Performance Cars, he infringed the rights of Performance Cars. As it turns out, there are numerous such instances in the law. An example they gave is where a fire has broken out. On an application of the "but for" test, the answer to the causal inquiry was simple. Lord Hoffmann, later said that the decision he, and the others, had reached failed the test for acceptable law: a rational and justifiable basis to depart from normally applied principles of law. My presentation today draws heavily from that article, although some arguments are refined. Such event is the new intervening act _ or novus actus interveniens _, where subsequent event is seen as overtaking the causal connection. [27] They attracted ferocious academic defence. [9] W Gummow 'Conclusion' in S Degeling and J Edelman (eds) Equity in Commercial Law (2005) 515. Dr Cherry in Chapman v Hearse). 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 … This amounts to a “necessary condition” of the harm under s 5D(1)(a) of the Civil Liability Act 2002 (NSW). [11] I doubt whether this is correct. It … [43] Smith v Kay (1859) 7 HLC 750, 759; (1859) 11 ER 299, 303. 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. In Sindell v Abbott Laboratories 607 P 2d 924 (1980) the plaintiff consumed medication that caused bodily injury due to its negligent manufacture. Although its genesis is much earlier, the "common sense" approach to causation has been well known in Australia since. Page 519 The Wagon Mound (No 1) (1961) - Foresee-ability of damage. 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. 10 Wagon Mound (No.2) [1967] AC 617, 633. Professor Stapleton considers that point (iii) is an example of causation, although one which does not require necessity. 10 Wagon Mound (No.2) [1967] AC 617, 633. However, if the question is whether Mr Abraham’s conduct had caused financial loss to Performance Cars then the answer is "no". 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. 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. This decision posed a test for causation which I respectfully submit may be in decline. [51] H Scott 'Killing and causing death in Roman law' (2013) 129 LQR 101, 120 -122. There are significant signs that the law is moving towards an acceptance of a necessity test for causation, that is a "but for" test. The Court of Appeal rightly said that Mr Abraham was a wrongdoer. These situations have been addressed by the proposition stated by Lord Watson in Wakelin v London & South Western Railway Co[47] that it is sufficient that the plaintiff prove that the negligence of the defendant 'caused or materially contributed to the injury'. [14] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516 – 519. [26] Performance Cars Ltd v Abraham [1962] 1 QB 33. You must confirm your e-mail address before editing pages. The same panel of the Rolls Royce had been previously damaged by another wrongdoer who was liable to pay for the repairs. Baker v Willoughby [1970] AC 476, Adelaide Chemical & Fertilizer Co v Carlyle, Matthews v Chicory Marketing Board (Victoria) (1938) 60 CLR 263, Story v Advance Bank of Australia (1993) 31 NSWLR 722, Medlin v State Government Insurance Commission. Mr Abraham was lucky. 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. 20. But it does make the liability questions more transparent. [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. That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury. When they were in Iraq they were held by Iraqi Airways. Otherwise, Douglas suggests, the focus would shift from the intentional nature of the conduct, however honest and reasonable, to questions of blameworthiness. 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. He assumed that the reference to "that substance" was a reference to the heroin only. factual causation cannot be proved but the court nevertheless does want to hold the defendant liable. It suggests that the judge ought to reason downwards from the intuitive sense of a conclusion. o! March v Stramare, [27] 5. 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? Law of Tort – Negligence – Causation – Remoteness of Damage – Damages – Novus Actus Interveniens. 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. Facts: * Two separate plaintiffs for both of these cases. 20. Find hearing dates & times for all current matters in the FCA and FCC. MARCH v. STRAMARE (E. and M.H.) March v Stramare, [19] 4. ... - 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. [37]In that case, the plaintiff lent money to a company due to his mistaken belief that the loan was secured by a charge. In criminal law, it is defined as the actus reus (an action) from which the specific injury or other effect arose and is combined with mens rea (a state of mind) to comprise the elements of guilt. [27] Eg Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328. [6] Gunnersen v Henwood [2011] VSC 440 [379]. I need to look through the multiple causal factors of each party. 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. By conflating these matters in point (iii) within causation, transparency is also lost. [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. At the start of this paper I mentioned that causation. Cook was in the bush. [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]. 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. Amongst a number of English and Commonwealth cases of high authority, he cited at pp 1373-1374 the judgment of the High Court of Australia in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 515, in which Mason CJ emphasised that it is wrong to place too much weight on the "but for" test to the exclusion of the "common sense" approach which the common law has always favoured, … In Royall v The Queen,[3] 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). Although their Honours all agreed with McHugh J that the truck driver was liable, Mason CJ preferred. [37] Edgington v Fitzmaurice (1885) 29 Ch 459. 9 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332. Separate from the enquiry into whether a person is a wrongdoer is the enquiry into whether the event which violated another's rights caused loss. Cf March v E and M H Stramare Pty Ltd (1991) 171 CLR 506 per Mason CJ at 515-516, Deane J at 521 - 523, Toohey J at 524. A re-orientation of causation requiring focus only upon necessity would permit these questions of principle to be exposed, analysed, and, if possible, justified rather than concealed within counter-intuitive assertions of a multifarious notion of 'causation' or within the broad rhetoric of 'common sense'. P, who was driving under the influence of alcohol, drove into the back of the truck. Slightly more controversial is the application of the same approach to cases involving the accountability of a trustee or company director as a custodian of assets. 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. That meaning is necessity which is applied by a test, as lawyers commonly call it, of "but for". - Subsequent event must arise independently of the original wrong and must disturb sequence of events that wouldve been anticipated. [33] Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 & 5) [2002] 2 AC 883. 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? In criminal law, it is defined as the actus reus (an action) from which the specific injury or other effect arose and is combined with mens rea (a state of mind) to comprise the elements of guilt. 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'. [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. Take an example derived from the facts in the United States Supreme Court decision in. [24] [2013] HCA 19; (2013) 250 CLR 375 [16]. That statute described an act of an accused person 'causing the death charged' committed in particular circumstances. [31] In Australia, a case raising similar issues was last month given special leave to appeal to the High Court of Australia.[32]. 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. An intervening act or a novus actus interveniens is an event which breaks the chain of causation and entails that the original tortfeasor is no longer liable for the plaintiff's damages. [34] Cf J Stapleton 'Unnecessary causes' (2013) 129 LQR 39, 58-61. 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 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 Stramare, [27] 5. Or, to put the proposition negatively, the event is not a cause of an outcome if the outcome would have happened anyway. Although its genesis is much earlier, the "common sense" approach to causation has been well known in Australia since March v Stramare. 24 April 1991 . I0 Craven, above n 3,100. l1 H L A Hart and T Honore, Causation in the Law (2nd Ed. The classic statement of this position in relation to deceit is Edgington v Fitzmaurice. 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). The concept of 'common sense' causation arguably would not have survived without the powerful support of Professors Hart and Honoré. 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. About Court fees including exemptions, deferral & refunds, Under Federal Court Rules 2011, Schedule 3, Pre-judgment & post-judgment interest rates. [20] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516. Causation is the "causal relationship between the defendant's conduct and end result". There are significant signs that the law is moving towards an acceptance of a necessity test for causation, that is a "but for" test. You do not have permission to edit this page, for the following reasons: The action you have requested is limited to users in the group: Users. The Kuwaiti planes had been brought to Iraq by Iraqi armed forces after the 1990 invasion of Kuwait. The negligence of a rescuing party is not a novus actus (i.e. As 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 the case of multiple tortfeasors and deceit, the test of causation is replaced by a test of contribution. (2) If causation is found to exist, what principles should be applied to determine whether responsibility should be imposed? The High Court unanimously held that the truck driver and his employer were liable. 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? 8 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. Lamb v London Borough of Camden [1981]2 All ER 408 asserted that 'cause' in everyday speech means more than a 'but for' or necessary condition. LTD. (1991) 171 CLR 506. 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. 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. 1985) 30-41. 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. He also relied on statements in a prospectus that were fraudulently made by the directors. Baker v Willoughby [1970] AC 467. The expert evidence was that Mr Banka may have died even if he had not taken the heroin. (3) If causation is not found to exist, should responsibility be imposed in any event? Professors Hart and Honoré asserted that 'cause' in everyday speech means more than a 'but for' or necessary condition. The 'but for' test (March v Stramare) Mere probability of harm may be sufficent to prove causation ... Novus Actus Interveniens (Chapan v Hearse) Medical Novus Intervenes (Mohony v J Kruschich) Egg Shell Skull Rule (Nader v Urban Transit NSW; Kavanagh v Ahktar; Stephenson v Waite Tileman) [44] Arnison v Smith (1875) 41 Ch D 348, 369 (Lord Halsbury LC). In D 9.2.11.2, Julian asked only if the person striking the slave was liable. Hudson, [103] 3 ... causation or to more specific criteria such as ‘novus actus interveniens’, ‘sole cause’ or ‘real cause’, all of which conceal unexpressed value judgments.’ When s.5D(1) and (2) are read together, it is … Baker v Willoughby [1970] AC 467. The underlying theme for today’s conference is 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. The novus actus criterion, that is, cannot reliably yield sensible outcomes on a consistent basis.24 The present state of the law of causation, certainly in the torts context, is that ... 20 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 522 (Deane J); Medlin v State Government That characterisation process involves normative questions. Were unlawfully detained pending deportation because their detention was under an unlawful blanket policy mesothelioma! '' sense Toohey and Gaudron JJ agreed struck him drug user reasoning ' ( 2003 ) LQR! Events that wouldve been anticipated any employer 'caused ' the mesothelioma out, there were many manufacturers that! 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