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Date: Thu, 11 Jan 2007 10:32:54 +1100 From: Neil Foster Subject: USSC on causation and contributory negligence
Dear Colleagues; I notice that the US Supreme Court has handed down a decision, Norfolk Southern Railway Co v Sorrell (No 05-746; Jan 10, 2007) which touches on the issue of standard of causation relevant at statute and common law to negligence and to contributory negligence. The point is a fairly narrow one but is interesting. A Federal statute, the Federal Employers' Liability Act (FELA; 1908; 45 USC 51) provides for tort recovery by an injured railway employee. {I am guessing Congress relied on the "interstate trade and commerce" power, which in the US has traditionally been interpreted much more widely than the similar power under the Australian Constitution - the view would be taken in Australia, I think, that railway travel as such is not a matter of Federal power.} Section 1 of FELA provides that the railway is liable for an injury "resulting in whole or in part from the negligence of" officers or employees of the company. Section 3 provides for a reduction due to the employee's contributory negligence (removing the former common law rule that such contributory negligence would have been a complete defence) and says that such reduction shall be "in proportion to the amount of negligence attributable to such employee". The issue in the case, where Mr Sorrell was hurt in an accident which was arguable at least partly his fault, was whether the same standard of causation applies to the company, as applies to the issue of the worker's fault. Missouri courts have for some years directed juries that the standards are different. Juries are told that the employer's liability is established if the employer negligence contributed "in whole or in part" to the injury, whereas the employee's negligence will only result in a reduction if his negligence "directly contributed to cause" the injury. This is intended to make it harder to establish contributory negligence, and hence is seen as favourable to the employee. The SC as a whole agreed that distinguishing between the two causation standards in this way was wrong. No other state courts interpreted the statute this way. "It is of course possible that everyone is out of step except Missouri", as Roberts CJ noted, but in fact the statute did not distinguish. Common law rules were applicable except where specifically altered. The statute had revoked the common law doctrine of contributory negligence as a complete defence, but it did not itself alter the test for causation. The common law was that the standard of causation for both negligence and contributory negligence was the same. {In NSW we have had this reaffirmed in s 5R of the Civil Liability Act 2002, though it was clear already - see Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 571-3 per Mason J, according to Villa.} This seems right, with respect. Comparison of the relative degree of departure from the standard of negligence between employer and employee (required by the language of "proportion" used in s 3) is only possible, as Roberts CJ notes, where like is compared with like, and the same test of causation should be used. The strongest argument put forward to justify the Missouri practice was the use of the words "in whole or in part" in s 1 but not s 3. But as Roberts CJ notes it would have made no sense to include such words in s 3, as if the employee's negligence was "in whole" responsible for his injury, there would be no liability. {Take note the drafters of the ridiculous s 5S of the NSW Civil Liability Act, which allows for 100% reduction on account of contributory negligence!} Having said that the overall opinion of the SC makes sense, there are as usual interesting sidebars in the comments of some of their Honours. An issue they all refused to deal with substantively, since it was not raised properly in the lower courts, was this: if the standard of causation for employer and employee is the same, what exactly is it? The issue seems to have arisen because of comments in a 1957 SC decision of Rogers v Missouri Pacific Railway Co 352 US 500. There the Court said that an action against an employer should succeed where "employer negligence played any part, even the slightest, in producing the injury or death". Some courts since Rogers had interpreted this to mean that what the plaintiff needed to prove in a FELA case was "less onerous than the proximate cause standard prevailing at common law" (cf Roberts CJ quoting Sorrell's argument in s I of his judgement). That seemed to be a matter of difference among the members of the Court. Roberts CJ noted the different arguments but carefully refrained from expressing an opinion. Souter J (joined by Scalia and Alito JJ) strongly argued that such a reading of Rogers was wrong and strongly hinted that the Missouri Court of Appeal on remand ought to find that the standard of causation under FELA was the same "proximate cause" standard as under common law. By contrast, Ginsburg J holds that the effect of the instant decision is to leave untouched a rule that "the causation standard in FELA actions is more "relaxed" than in tort litigation generally". She does so by noting that use of the word "proximate" does not resolve the issue, and that what is "proximate" in the statutory context is informed by "strong policy considerations", to do with the clear aim of FELA to provide increased protection for railway workers. Once again, of course, a superior common law court considering causation cites an article by Stapleton - see fn 2 to Ginsburg J's judgement.
Regards
Neil
Foster
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