|
|
|
|
Where am I now? Lawlink > Supreme Court > Speeches > Fault, Causation and Responsibility: Is Tort Law Just an Instrument of Corrective Justice?
|
Print page
|
Fault, Causation and Responsibility: Is Tort Law Just an Instrument of Corrective Justice?
(Revised and published (2000) 19 Australian Bar Review 201)
FAULT, CAUSATION AND RESPONSIBILITY:
IS TORT LAW JUST AN INSTRUMENT OF
CORRECTIVE JUSTICE?
You look at where you’re going and where you are and it never makes sense, but then you look back to where you’ve been and a pattern seems to emerge. And if you project forward from that pattern, then sometimes you can come up with something. Pirsig, Zen and the Art of Motor Cycle Maintenance (1983) p162.
Like the Irish jury that were unanimous that they could not agree, the High Court of Australia laboured mightily in Perre v Apand Pty Ltd [1999] HCA 36, 73 ALJR 1190, 164 ALR 606. before recognising lack of consensus or even a majority position about the essentials of the action in negligence for pure economic loss. Only Kirby J saw merit in the three stage framework favoured in England. Their Honours agreed that the animal exists. But proximity was rejected as a useful taxonomic guide. General reliance is no longer generally relied on by the hunters. The creature could not be identified by its foreseeability spots, but its known vulnerability was proposed as a working hypothesis. Support for this factor has firmed in Crimmins v Stevedoring Industry Finance Committee (1999) 167 ALR 1 at [3] per Gleeson CJ (agreeing with McHugh J), [43] per Gaudron J, [100], [104] per McHugh J, [233] per Kirby J.
The lack of agreement is hardly surprising. The framework of modern tort law is elusive, perhaps inherently protean. Maybe Cooke P was correct in his gloomy prognostication that:
Ultimately the exercise can only be a balancing one and the important object is that all relevant factors be weighed. There is no escape from the truth that, whatever formula be used, the outcome in a grey area case has to be determined by judicial judgment. Formulae can help to organise thinking but they cannot provide answers. South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 at 294. See also Jane Stapleton, “Duty of Care Factors: a Selection from the Judicial Menus” in Cane and Stapleton eds, The Law of Obligations: Essays in Celebration of John Fleming (1998).
Whether a new age of certainty will dawn in the High Court is unknown. In the meantime, the decision to proceed slowly and see what turns up was inevitable. It is hardly unprecedented. Even Sir Owen Dixon once confided to Chief Justice Latham: Letter dated 1 June 1937 quoted by Bennett, Keystone of the Federal Arch, p 67.
In [s92] cases relating to transport … I think it is almost clear that we must proceed by arbitrary methods. No doubt there will be limits but political and economic considerations will guide the instinct of the Court chiefly. In time the thing will work back to some principle or doctrine.
Perhaps Sir Owen had tongue in cheek, recognising the need for himself to mark time to allow his arbitrary brethren time to fall into line with his own clear logic. This, of course, happened. The new age of certainty dawned in Hughes & Vale Pty Ltd v New South Wales [1955] AC 241. It was to flourish for a time, before a new dark age, followed by a new age of certainty was to reappear (Cole v Whitfield (1988) 165 CLR 360) briefly (cf Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411).
Very recently, in Crimmins v Stevedoring Industry Finance Committee, [1999] HCA 59 at [73]-[78]. McHugh J warned that incremental development by analogy must be rooted in principle and policy. Frank discussion about policy factors must not abandon the search for a linking chain of reasoning. His Honour stressed the merits of predictability and sought to confine the uncertainties of Perre to cases of pure economic loss. It may not be reading too much into his judgment to see it as a plea to his brethren not to revisit well-established areas of tort law in the quest to find and apply principles of general application. Kirby J spoke to same effect at [226] n262.
The concepts of “fault” and “responsibility” are part of the landscape of modern tort law, but they usually lie hidden. “Responsibility” covers a wide spectrum. It does not necessarily import legal liability or moral blame, although it is a condition of both. As Professor Honoré points out, human responsibility may relate to (a) our own conduct, (b) the responsibility that we choose to take on for other people, things and events; and (c) the responsibility that society thrusts upon us. See Honoré, Responsibility and Fault (1999) pp125-129. This book republishes essays written during the last decade, with an introduction drawing together the various strands. I shall confine myself to the field of legal responsibility as reflected in the law of tort, principally the expanding field of negligence. That area is more than large enough. Professor Honoré’s three aspects of responsibility are still relevant. They remind that liability may stem from omissions as well as acts, including the acts or omissions of a third party. And they show the fallacy of limiting duty of care to “assumption” of an obligation to control a person or situation.
The general rule is that a plaintiff bears the onus of proof on all matters. A number of ostensibly procedural rules assist plaintiffs in their quest to prove a tort case against chosen defendants (see nn41, 42 below). Proving liability is one thing, getting all of the damages claimed is another. Academic lawyers tend to concentrate on the former. Practitioners and judges spend most of their time dealing with the latter. Many injured plaintiffs come with a history of other problems or acquire one after the tortious injury and before trial. The task of segregating the loss actually stemming from the tort may be complex and problematic. It is generally true that the tortfeasor takes the victim as found, but it is certainly not the corollary that the court ignores the victim’s antecedent incapacities or potential disabilities and illnesses when assessing damages. Wilson v Peisley (1975) 7 ALR 571, 50 ALJR 207. Nor does the victim get reparation for every loss stemming however remotely from the wrongdoer’s fault. Many factual and legal issues require unravelling.
In Perre, McHugh J propounded the theses that tort law is “an instrument of corrective justice”; Perre at [103], [151]. See also Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 284, 289. and that “negligence at common law is still a fault-based system”. Perre at [131]. See also Gummow J at [171].
McHugh J’s references to the law of tort being an instrument of corrective justice draw attention to a sophisticated debate occurring in North America. See, eg Ernest J Weinrib, “The Special Morality of Tort Law” (1989) 34 McGill Law Rev 403; Richard W Wright, “Substantive Corrective Justice” (1992) 77 Iowa Law Rev 625; Honoré, op cit pp73-6. At the broadest level, this theory sees tort law as grounded upon “correlativity”, requiring those who have harmed others without justification to put the matter right by reparation (damages), specific relief (eg return of a detained chattel) or other means (eg an apology). It requires proof of harm done to the plaintiff for which the defendant bears some causal responsibility.
But the wrongdoer may be impossible to identify or not worth suing. Exclusive adherence to corrective justice principles is not good enough for plaintiffs who go in search of “peripheral” parties. See Stapleton, “Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence” (1995) 111 LQR 301; Crimmins at [306] (Hayne J). An American newspaper headline summed it up:
Can’t sue the person who hurt you? Don’t sulk. Hire a personal-injury lawyer and sue someone else.
Corrective justice does not fully explain the rules of tort. See generally Peter Cane, “Corrective Justice and Correlativity in Private Law” (1996) 16 Ox Jo LS 471; Honoré, op cit pp80-87. Even within negligence, the silent but insistent demands of distributive justice may enlarge liability, for example by imposing strict or near strict liability upon classes of persons involved in risky undertakings or by favouring liability against insured defendants. At present the availability of insurance is, in theory, an irrelevant factor: see Kars v Kars (1996) 187 CLR 354 at 378-9; Esanda at 302-3. Conversely, they may restrict liability, for example by control devices in the field of nervous shock that are difficult to justify in principle. See Jane Stapleton, “In Restraint of Tort” in Peter Birks (ed), The Frontiers of Liability (1994) vol 2 p95. The highway non-feasance rule cannot be explained except according to principles of distributive justice.
Recently the House of Lords has given explicit recognition to distributive justice principles as reasons for limiting tort liability. Frost v Chief Constable of South Yorkshire [1999] 2 AC 455. involved claims by police officers with respect to psychiatric injury suffered after helping victims at the Hillsborough disaster where 96 spectators were crushed to death at a soccer match. The negligence of the officers’ employer was held insufficient to ground recovery for pure psychiatric injury. Whether this represents the Australian law is unclear. Cf Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383. Their Lordships expressed concern about the impact of a litigation explosion in this area, including concern about the burden of damages and the impact upon crowded court lists. It is also clear that they recognised the difficulty of justifying how it would be fair to award compensation to police officers when it had already been refused to family members of those killed or maimed at the disaster. Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. Lord Hoffmann referred to competing proposals to scrap all “control mechanisms” in relation to psychiatric damage or alternatively to abolish recovery for psychiatric injury altogether. He continued: At 503.
The appeal of these two opposing proposals rather depends upon where one starts from. If one starts from the proposition that in principle the law of torts is there to give legal force to an Aristotelian system of corrective justice, then there is obviously no valid distinction to be drawn between physical and psychiatric injury. On this view, the control mechanisms merely reflect a vulgar scepticism about the reality of psychiatric injury or a belief that it is less worthy of compensation than physical injury: therein the patient must minister to himself. On the other hand, if one starts from the imperfect reality of the way the law of torts actually works, in which the vast majority of cases of injury and disability, both physical and psychiatric, go uncompensated because the persons (if any) who caused the damage were not negligent (a question which often involves very fine distinctions), or because the plaintiff lacks the evidence or the resources to prove to a court that they were negligent, or because the potential defendants happen to have no money, then questions of distributive justice tend to intrude themselves. Why should X receive generous compensation for his injury when Y receives nothing? Is the administration of so arbitrary and imperfect a system of compensation worth the very considerable cost? On this view, a uniform refusal to provide compensation for psychiatric injury adds little to the existing stock of anomaly in the law of torts and at least provides a rule which is easy to understand and cheap to administer.
In McFarlane v Tayside Health Board [1999] 3 WLR 1301. the House of Lords held that damages were not recoverable for the maintenance of a healthy child born following a negligently performed vasectomy operation on her father. The child’s mother was allowed general damages for the pain, suffering and inconvenience of childbirth. But the parents were refused their claim for the costs of maintaining and educating their healthy “unplanned” child. Lord Steyn said: At 1318.
It is possible to view the case simply from the perspective of corrective justice. It requires somebody who has harmed another without justification to indemnify the other. On this approach the parents’ claim for the cost of bringing up Catherine must succeed. But one may also approach the case from the vantage point of distributive justice. It requires a focus on the just distribution of burdens and losses among members of a society. If the matter is approached in this way, it may become relevant to ask of the commuters on the Underground the following question: “Should the parents of an unwanted but healthy child be able to sue the doctor or hospital for compensation equivalent to the cost of bringing up the child for the years of his or her minority, ie until about 18 years?” My Lords, I have not consulted my fellow travellers on the London Underground but I am firmly of the view that an overwhelming number of ordinary men and women would answer the question with an emphatic “No”. And the reason for such a response would be an inarticulate premise as to what is morally acceptable and what is not. Like Ognall J in Jones v Berkshire Area Health Authority, 2 July 1986, they will have in mind that many couples cannot have children and others have the sorrow and burden of looking after a disabled child. The realisation that compensation for financial loss in respect of the upbringing of a child would necessarily have to discriminate between rich and poor would, surely appear unseemly to them. It would also worry them that parents may be put in a position of arguing in court that the unwanted child, which they accepted and care for, is more trouble than it is worth. Instinctively, the traveller on the Underground would consider that the law of tort has no business to provide legal remedies consequent upon the birth of a healthy child, which all of us regard as a valuable and good thing.
It is interesting that in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 284. McHugh J effectively recognised that distributive justice could temper even “the most insistent demands of corrective justice”. He saw the extension of auditor’s liability to cover cases like Esanda as:
… likely to mean that courts and judges hearing such cases will be tied up for many months - sometimes for more than a year - to the detriment of other litigants. Only the most insistent demands of corrective justice should induce the common law courts to mould legal rules to cover cases that bring about this consequence in an era when court resources are already stretched to breaking point and courts are forced to send many cases out to private arbitrators for determination.
It is too early to declare corrective justice as the victor in the field. But it remains a predominating force.
Cutting across this corrective-distributive justice debate, but mainly within the corrective justice framework, lies the question of the role of fault.
Occasionally judges acknowledge the impact of fault and the way that moral responsibility is relevant in a marginal case. See, eg McLoughlin v O’Brian [1983] AC 410 at 441 (Lord Bridge). In Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad”, (1976) 136 CLR 529 at 575. The passage is cited by Gummow J in Perre at [171]. Stephen J was quoting from Lord Atkin’s speech in Donoghue v Stevenson [1932] AC 562 at 580. Stephen J referred to “a general public sentiment of moral wrongdoing for which the offender must pay” as a broad principle underlying liability in negligence.
Sir John Salmond denied the existence of a single law of tort. At the same time, he argued that a condition usually demanded for liability in an action of tort was either wrongful intention or culpable negligence on the part of the defendant. For him, there was no reason why a loss should be shifted from one person’s shoulders to another’s except, in general, to punish or deter wrongful intent or negligence. Salmond on Torts, 6th ed (1924) pp12-13. See discussion in Salmond and Heuston on the Law of Torts, 21st ed (1996) pp21-25. Salmond was logically compelled to say of the decision in Rylands v Fletcher, (1866) LR 1 Ex 265, (1868) LR 3 HL 330. which is founded upon a theory of strict liability: Salmond on Torts, 6th ed at viii.
No decision in the law of torts has done more to prevent the establishment of a simple, uniform, and intelligible system of civil responsibility.
The High Court took note in Burnie Port Authority v General Jones Pty Ltd. (1994) 179 CLR 520. McHugh J’s protest that “the common law holds no prejudice against strict liability” At 593. Only Brennan J joined him in dissent. did not sway the majority.
The overruling of Beaudesert Shire Council v Smith (1966) 120 CLR 145. in Northern Territory of Australia v Mengel (1995) 185 CLR 307. points in a similar direction. There have also been recent stern reminders that the action for breach of statutory duty does not exist in the absence of clearly expressed legislative intent to confer a personal right. Id at 343-4; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 458-9; Crimmins at [157]-[158] (Gummow J). Other pockets of residual strict liability are being identified and exterminated in the “staggering march of negligence”. See Tony Weir, “The staggering march of negligence” in Cane and Stapleton, op cit, n4. Professor Weir instances developments in relation to nuisance, trespass, defamation and other areas where there are intrusions of negligence’s concepts of reasonableness, foreseeability, proximity, remoteness etc.
But the trend is not all one-way. The desire to find identifiable and deep-pocketed defendants has pushed the boundaries of vicarious liability and non-delegable duties of care. Indeed, there are strong hints by McHugh J and Kirby J in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 366, 392. For recent cases illustrating difficulties with the existing law, see Newcastle Entertainment Security Pty Ltd v Simpson [1999] NSWCA 351, Hollis v Vabu Pty Ltd (T/as Crisis Couriers) [1999] NSWCA 334. that the time is ripe for the High Court to consider adopting a principle of vicarious liability for the acts and omissions of independent contractors. It is impossible to fit these development within the correlative framework of the corrective justice model.
“It’s your fault, you should pay for it” represents the response of a primary school child whose treasured toy is broken by a playmate. Childish insights to ethical issues are not necessarily deficient. But complexities enter as the child matures, especially if he or she stands in the wrongdoer’s shoes.
The childish response occurs where causation in fact is clear, at least to the child. There is a single wrongdoer whose responsibility stems directly from smashing the toy. To the naďve victim, the wrongdoer’s capacity for self-discipline doesn’t enter into the equation, nor the unexpected extent of the loss, nor its lack of proportion to the fault of the wrongdoer, nor the wrongdoer’s capacity to pay. These things only occur as the growing child starts to perceive that standards set for others may be applied in reverse. Later comes the idea that it is more useful to lay the problem at the feet of the wrongdoer’s parents.
Similar developments affect the mature common law as it is asked to make someone pay for every conceivable species of harm. Let me illustrate. P suffers blood poisoning in hospital where he is a temporary patient following a minor road accident. The simple example may throw up a plethora of issues:
• Which individuals are liable: the doctor, the nurses, the driver?
• Which organisations are liable because of vicarious liability or a non-delegable duty: the hospital, the driver’s employer, the car owner, the highway authority?
• What damages are payable by each defendant? Does every person liable pay for both the bruising and the damage stemming from the blood poisoning?
• Are damages reduced for contributory negligence?
• Can the defendants share the loss amongst themselves?
Several doctrines aid injured plaintiffs in their quest to find someone “to pay” and pay in full. These include substantive rules like the “egg shell skull” rule. There are also rules of procedure which aid plaintiffs uncertain whom to sue See Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 317. or which allow (but do not compel) inferences of causation to be drawn against persons whose negligence is followed by an accident of the kind within the scope of the relevant duty. See Betts v Whittingslowe (1945) 71 CLR 637 at 649; Chappel v Hart (1998) 195 CLR 232 at 238-9, 247-8, 257, 273-4; Naxakis v Western General Hospital [1999] HCA 22 at [31], [76], [127]. Indeed there is a current debate about whether persons who create or increase a risk of injury should (without proof on the probabilities that the risk came home) bear legal responsibility if the risk comes home. The debate centres on the interpretation or re-interpretation of Lord Wilberforce’s speech in McGhee v National Coal Board [1973] 1 WLR 1 at 6-7. Some propose effective reversal of onus of proof as distinct from the reasoning process referred to the authorities cited in the previous footnote. Cf Bennett v Minister for Community Welfare (1992) 176 CLR 408 at 420-1, esp fn (23) (Gaudron J); Chappel at 273-4 (Kirby J); Jane Stapleton, “The Gist of Negligence” (1988) 104 LQR 389 at 401-7. Within New South Wales much of the debate is focussed on the correctness or otherwise of my reasons in Bendix Mintex in their application to mesothelioma cases. The plaintiff’s task is eased by the need to show only that the injuries were “caused or materially contributed to” by the wrongful conduct of the chosen defendant or defendants, March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 514. and by the law’s adherence to the concept of solidary liability. This enables the plaintiff to take action against one of many defendants and to receive full compensation from that defendant, leaving it to the defendant to seek to recover a share of the damages from any other liable defendant. See generally New South Wales Law Reform Commission Contribution Between Persons Liable for the Same Damages (1999) R99.
The fault notion may act as a control device. It is seen as unfair to place the burden of loss upon the shoulders of a tortfeasor whose fault is disproportionate to the loss claimed by one or many plaintiffs. To the extent that fault and degrees of fault influence findings as to liability or the extent of liability, there is a tempering of corrective justice in deference to a retribution principle in which there is proportionality between the gravity of the defendant’s conduct and the extent of reparation. See Honoré, op cit pp85-87.
(Sometimes legislatures intervene to close floodgates. Occasionally defendants are given statutory immunity, which the courts construe narrowly. See, eg Puntoriero v Water Administration Ministerial Corporation (1999) 165 ALR 337, (1999) 73 ALJR 1359. More common are legislative caps which preclude certain heads of damages or limit their extent.)
Causation is a “central organizing concept”, Weinrib, op cit, p404. usually a control device, in tort law’s quest to keep law (liability) and morality (fault) in step. Causation reasoning is often used to expand or to stem liability for particular losses flowing from an act of negligence.
Tracing tort law’s use and abuse of causation discloses major developments in the quest to recognise fault but to stem its disproportionate outcome. Many hard issues have been hidden beneath the beguiling veneer of causation. In his introduction to Responsibility and Fault, Professor Honoré states Op cit, at p7. that “people are never legally liable merely because they have caused someone harm”.
It may be possible to see four stages in the use and abuse of causation.
Like the child whose toy is broken, the ancient common law usually treated legal responsibility as a self-evident consequence of causation of damage, regardless of fault. This is hardly surprising since concern was focussed on physical injury and since the action for trespass dealt with direct and intentional acts. Even the action on the case refused until the nineteenth century to recognise openly that absence of fault was an excuse. Alford v Magee (1952) 85 CLR 437 at 453. Generally, see C Peck, “Negligence and Liability Without Fault in Tort Law” (1971) 46 Washington L Rev 225 at 225-7. So mechanistic was the early common law that it compensated for death by confiscation of the offending animal or object or requiring the owner to pay its value. In this institution of deodand, blame or fault was usually irrelevant, but juries sometimes imposed nominal deodands if fault was absent. See Teresa Sutton, “The Deodand and Responsibility for Death” (1997) 18 Legal History 44.
By the nineteenth century a tort of negligence had emerged, but Rylands v Fletcher illustrates that strict liability remained well entrenched. Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560. epitomises the second stage of the role of causation in tort damages. Liability now depends, in the main, upon proof of lack of due care (fault) in established duty categories. But responsibility in damages (still almost invariably for physical loss and damage) extends to all of the direct consequences of a negligent act. On the plaintiff’s side of the equation, contributory negligence is a complete defence.
Ostensibly, causation reasoning provided answers for plaintiffs and defendants in this era. To limit liability for negligent defendants and to permit recovery by negligent plaintiffs judges developed metaphysical causation principles, using them like circuit breakers. Concepts such as novus actus interveniens were introduced as control devices to block Cardozo CJ’s hideous spectre of liability “in an indeterminate amount for an indeterminate time to an indeterminate class”. Ultramares Corp v Touche 174 NE 441 at 444 (1931). In many cases, the judges were driven “to take refuge in metaphor or Latin”. Environment Agency v Empress Car Co (Abertillery) Limited [1999] 2 AC 22 at 29 per Lord Hoffmann. Refinements such as causa causans, effective cause, proximate or legal cause and novus actus interveniens were introduced to reflect degrees of fault and to deal with difficulties presented by the distinction between acts and omissions and where the acts of third persons or natural forces are concerned. Negligent plaintiffs sometimes succeeded by showing that the defendant had the “last opportunity” to avoid an accident, and until at least the 1950s “last opportunity” was viewed in terms of breaking a chain of causation stemming from the plaintiff’s own negligence. In Alford v Magee (1952) 85 CLR 437 the High Court exploded this view. But the proposition that the last opportunity rule was not a test of causation had to be reiterated in Chapman v Hearse (1961) 106 CLR 112 at 123-4. See also March at 511-514.
Wagon Mound (No 1) gave greater emphasis to the fault concept by overruling Re Polemis and offering foreseeability of damage as a control device. Overseas Tankership (UK) Ltd v Mort’s Dock & Engineering Co Ltd (“The Wagon Mound”) [1961] AC 388. However, Viscount Simond’s test was really “a flexible concept deprive[d] … of any fettering rigidity”. Sir Robin Cooke, “Remoteness of Damages and Judicial Discretion” [1978] Cam LJ 501 at 537. In March (at 510), Mason CJ explained that reasonable foresight was later to be rejected as a test of causation (in Chapman v Hearse) and as an exclusive criteria of responsibility (in McKew v Holland & Hannen & Cubitts [1970] SC (HL) 20 and Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522). It warned not to take causation too far, but it did not change much. Re Polemis would probably be decided the same today. Wagon Mound has spawned its own complex distinctions between foreseeability as to kinds of damage and foreseeability as to the manner in which damage might occur. Chapman at 120-121; Hughes v Lord Advocate [1963] AC 837; Commonwealth v McLean (1996) 41 NSWLR 389 at 402-407.
Around the 1960s and 1970s there was a determined effort by appellate judges to expel metaphysical theory with its attendant metaphors and latinisms. Windeyer J once joked that:
those who would explain common law principles by exotic Latin maxims ought surely to remember that these are to be understood secundum subjectam materiam. Smith v Jenkins (1970) 119 CLR 397 at 410.
What were we offered in its place? Enter the third phase. “Causation” was still seen as central, because reasonable foreseeability only “mark[ed] the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act”. Chapman at 122 per curiam. However, we were assured that causation problems could be solved by the robust application of “common sense”. Thus, in Alphacell Ltd v Woodward [1972] AC 824 at 847. Lord Hoffmann describes this as being “in the best tradition of English anti-intellectualism” Common Sense and Causing Loss, lecture to the Chancery Bar Association, 15 June 1999, p2. See also Clay v A J Crump & Sons Ltd [1964] 1 QB 533 at 568-9 per Upjohn LJ (“… causation is almost entirely a question of fact in each case”). Lord Salmon said that:
… what or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than by abstract metaphysical theory.
This robust approach was particularly suitable in the era when juries decided liability and damages. See Fitzgerald v Penn (1954) 91 CLR 268.
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. is the Australian authority still often cited for the glib submission that causation is a question of fact and a matter of common sense. It is frequently invoked in a context suggesting that hard questions of responsibility for fault can be solved once the causation issue is properly addressed. In fact, March is the modern turning point and the start of a fourth era in which causation reasoning becomes increasingly unfashionable. The CLR headnote reiterates the mantra that causation is essentially a question of fact to be answered by reference to common sense and experience. But this misrepresents March, which substantially qualifies or undermines this proposition by going on to emphasise that questions of policy and value judgments necessarily affect legal responsibility, measure of damages, contributory negligence and apportionment. The judgments in March acknowledge that the attribution of responsibility is a value-laden exercise even if the language of causation is used. Mason CJ was even critical of the view that value judgment has no part to play even in resolving causation as an issue of fact. At 515-517. See also Deane J at 523-4.
Building on March, there has been a further retreat in the last decade from the misplaced and misleading confidence that causation can be reduced to an opaque jury instruction about using common sense. Lord Hoffmann’s speech in Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22. is a milestone. His Lordship put the matter bluntly in a recent paper: See footnote 58.
The reason why courts get the wrong answer on questions of causation is not usually because they have misunderstood the facts or lack common sense but because they have got the law wrong.
We are now urged to ask necessary causation questions in their particular factual and legal context and, in the case of tort, from the point of view of the injured plaintiff and the wrong sued upon. Professor Stapleton helpfully describes this as the perspective through which the objective phenomenon of causation is judged. Jane Stapleton, “Perspectives on Causation” in Oxford Essays in Jurisprudence (4th series) (Oxford University Press, 1999). Thus, in Chappel, Gaudron J said: (1998) 195 CLR 232 at 238.
Questions of causation are not answered in a legal vacuum. Rather, they are answered in the legal framework in which they arise. For present purposes, that framework is the law of negligence. And in that framework, it is important to bear in mind that that body of law operates, if it operates at all, to assign a duty to take reasonable steps to prevent a foreseeable risk of harm of the kind in issue.
Cases such as Medlin v State Government Insurance Commission (1995) 182 CLR 1. In so doing, the Court effectively applied what Mason CJ and McHugh J had said about novus actus interveniens in March. See Kavanagh v Akhtar (1998) 45 NSWLR at 597-9. applied this approach to mitigation issues. The last of the metaphysical latinisms using the language of causation (novus actus interveniens) was shown the door, without actually being booted out. The High Court there emphasised that the reasonableness of the plaintiff’s conduct was to be judged, as between the plaintiff and the defendant, and from the perspective of the plaintiff’s injured condition.
Appeals to common sense should nevertheless serve to remind us that the exercise is one in which judges and juries should have confidence in their personal sense of wisdom and reasonableness. But the task remains normative, because in the final analysis the various tests “allow the tribunal of fact to determine legal liability on broad grounds of moral responsibility for the damage which has occurred”. March at 531 per McHugh J.
In March, the High Court exposed the presence of policy values sheltering behind the glib language of causation. In later cases, that Court has commenced to articulate those values. The guidance from the recent cases is that ultimate questions such as “was there breach?”, “did it affect the plaintiff’s conduct?” and “did it cause the damage claimed?” must be asked in the context of the defendant’s legal responsibility to the particular plaintiff. This may involve considering the scope of the risk in contemplation of the legal duty.
A cynical response to the title of my paper would be to propound the thesis that if a judge is moved by fault then he or she will find legal responsibility. But the books are full of cases “which show how shadowy is the line between culpability and compensation”. Wagon Mound (No 1) at 418 per Viscount Simonds. Recent decisions and recent academic writing have cast much light on the subject. The shadows remain, but the focus is clearer.
|
|
|
