I think 'material contribution', and the analogous but more pervasive (and equally unhelpful on what constitutes a 'contribution' or 'factor') 'substantial factor' test, had a more indigenous, non-Scot, origin in the United States (in similar pollution cases, but also overdetermined causation cases involving multiple fires, noises, floods, etc.). I think both were meant to have the meaning(s) that Martin states: a causal contribution, even if not 'but for', that is more than de minimus in a legal sense.
I also agree with Martin that the confusion of both terms with increased risk seems to be an unfortunate recent result of understandable attempts to deal with inherent uncertainty regrading possible causation around the world, in medical malpractice and toxic tort cases. It would be much better, I and others have argued, to acknowledge the inherent uncertainty regarding causation and frankly face the legal issue of whether there should be some adjustment in the rules of proof and liability in such situations. See my forthcoming paper at http://papers.ssrn.com/abstract=1918474.
I agree with David (and Michael Moore and many others) that the 'but for' test, with its 'what might have happened but did not', imagined-world, counterfactual analysis, is much more technical and philosophical (and unrealistically and incorrectly so) than a covering law sufficiency analysis, as employed in a proper NESS analysis (which only employs necessity in constructing causal laws/generalizations, but not in their application, which focuses instead on actual instantiation of the required elements in the causal laws/generalizations). See the attorney's attempt in the transcript that started this discussion to dismiss the 'but for' test as an irrelevant 'philosophical' test (and the Restatements' similar description of the but-for test as the sole requirement for legal responsibility). See also my forthcoming paper at http://ssrn.com/abstract=1918405.
I agree with Sandy on one point, partially. We need to clearly recognize (as the courts clearly do but confuse with the but-for test of actual causation) a separate, noncausal, attributable responsibility limitation for legal injuries and consequent harms that would have occurred anyway, but only if they would have occurred anyway in the absence of any legally responsible conduct or activity (rather than as a result of other tortious or legally responsible conduct), and only if the defendant proves that they almost certainly (rather than merely probably) would have occurred anyway. See part II on the "no-worse off" limitation on attributable responsibility (proximate causation, scope of liability, remoteness, damages, etc.) in my paper at http://papers.ssrn.com/abstract=438640.
Finally, viewing the standards of persuasion, as Sandy suggests, as mere statistical probability assessments, rather than as belief functions, is clearly wrong and leads to incoherence, as the UK Supreme Court began to realize in Sienkewiecz. See agaiun my forthcoming paper cited in the first paragraph above.
From: Sandy Steel on behalf of Sandy Steel
Sent: Sun 9/25/2011 9:58 AM
To: Wright, Richard
Cc: Martin Hogg; David Cheifetz; obligations@uwo.ca
Subject: RE: ODG: Blaming the Scots for the common law's factual causation follies
For what it's worth, the phrase 'material contribution' does seem to come
from C19 Scottish (nuisance) cases.
Whether anyone, and if so who, is to blame for the present state of the
law, is, of course, a wholly separate matter. I agree with Martin that the
case against the Scots is pretty untenable.
Finally though, it's worth remembering that, even if the law manages to
dethrone the but-for test, and install NESS, the claimant ought, as a
matter of general legal principle, to lose if its damage would have
occurred, on the balance of probability, in any event. The problem is that
the law seems to be courting NESS whilst at the same time applying an
unarticulated exceptional proof rule in the assessment of the claimant's
damage (i.e. liability in solidum without proof on the BoP). If we are to
have NESS, these two should be disentangled. Whether we should have NESS is
a separate question; I am still unsure whether bringing quite refined, and
technical-philosophical notions of "causal sufficiency" into legal
discourse is a good idea.
Sandy Steel
On Sep 25 2011, Wright, Richard wrote:
>All very well said, Martin. I concur totally. - Richard
>
>________________________________
>
> From: Martin Hogg [mailto:mhogg@staffmail.ed.ac.uk] Sent: Sun 9/25/2011
> 5:27 AM To: David Cheifetz Cc: obligations@uwo.ca Subject: Re: ODG:
> Blaming the Scots for the common law's factual causation follies
>
>
>
> An interesting snippet of exchanges from Strong v Woolworths, thank you
> David. A pity though that the late Sir Douglas Menzies were not still on
> the HCA bench to dispel the idea that all causal difficulties have come
> from the troublesome Scots!
>
> I don't really see a problem with the idea of material contribution as
> stating either (i) a requirement that a cause in fact must be more than
> merely de minimis if it is to attract responsibility for harm, or (ii) as
> a judicial staging post (albeit rather opaque in nature) towards the idea
> that what is required for a cause is that it be a necessary element in a
> set of conditions sufficient for an outcome, rather than (as but for
> requires) a necessary element plain and simple (the courts haven't quite
> got there yet, but will soon, one hopes, and it seems to me that
> 'material contribution' represents a grasping towards this revelation).
>
> The problem comes when material contribution is equated with material
> increase in risk, a confusion brought in by, admittedly a Scots case,
> McGhee v National Coal Board, but the English Lords of Appeal in that
> case were, it seems to me, as enthusiastic about the idea as the Scots!
> Remember, for instance, what Lord Salmon said in McGhee: "the possibility
> of a distinction existing between (a) having materially increased the
> risk of contracting the disease, and (b) having materially contributed to
> causing the disease may no doubt be a fruitful source of interesting
> academic discussions between students of philosophy. Such a distinction
> is, however, far too unreal to be recognised by the Common Law." That
> unfortunate conflation of probability of causing x with causing x from (I
> think) a Man of Kent, not a Scotsman. As for Baron Robson (who "might be
> a Scotsman"), I think he was in fact from Newcastle-on-Tyne, which I
> believe is not yet part of Scotland.
>
>Martin Hogg
>Edinburgh Law School
>
>On 24 Sep 2011, at 17:29, David Cheifetz wrote:
>
>
> from the transcript in Strong v Woolworths Limited t/as Big W &
> Anor, [2011] HCATrans 194
>
> http://www.austlii.edu.au/au/other/HCATrans/2011/194.html
>
> .... MR TOOMEY: Yes, your Honour. But you see, that is turning it
> one way. If you turn it the other way, you say material condition - and
> this is perhaps going back to the argument Justice Crennan put to me
> earlier - if it is the concept of material contribution which is removed,
> then that is serious, because the concept of material contribution, as we
> hope we have demonstrated in our submissions, is deeply embedded in the
> concept of causation, it is part of a causation. I was going to read to
> your Honours a passage from Charlesworth on Negligence. I found this by
> chance in the sixth edition, which is one of Mr Percy's editions. It is
> only a sentence, but if I could - - - CRENNAN J: Page number? MR TOOMEY:
> It is the sixth edition of Charlesworth on Negligence, page 226 at about
> point 5, your Honours, and it is under a shoulder-heading "Principle
> cause of the accident" and it sets out what was said by Lord Reid in
> Bonnington Castings v Wardlaw. GUMMOW J: Lord Reid seems to have got that
> from Scotland. There are a whole lot of Scottish cases before that using
> this notion, where there were - take a situation where there is a
> polluted river, there are a number of factories spewing out noxious
> substances. The plaintiff cannot pinpoint one to the exclusion of the
> others, but each seems to be materially contributing, and that seems to
> be enough. MR TOOMEY: Yes, your Honour. GUMMOW J: That seems to be the
> idea. MR TOOMEY: Yes. Your Honour, can I say this? I was going to come to
> this later, but since your Honour raises it, Lord Keith of Avonholm in -
> - - GUMMOW J: Well, he is a Scot too, you see. MR TOOMEY: He is a Scot,
> indeed, as Lord Reid was, but Lord Keith described "material
> contribution" as a material contributing cause. It pins it to what it is
> supposed to be, and we say using that phrase makes it very much clearer.
> I am sorry, getting back to Charlesworth, after setting out the famous
> passage from Lord Reid's speech, where he said any contribution which was
> not de minimis was material, the text continues: It follows that in an
> action for damages for breach of statutory duty or negligence it is not
> necessary to prove that the breach alleged was the whole or even the main
> cause of the accident, but it is sufficient to show that it materially
> contributed to the damage. GUMMOW J: What is the force of the adjective
> "material"? MR TOOMEY: I suppose one has to go back to Lord Reid, your
> Honour, where he says if it is not de minimis, it is material. GUMMOW J:
> Yes. MR TOOMEY: It would have to mean has some effect, would it not, your
> Honour, having some effect? FRENCH CJ: That raises.....main cause. If you
> have got a sequence of events, a chain of events, and if one of them did
> not occur, the accident would not have occurred. They are all, in a
> logical sense, I suppose, of equal weight. MR TOOMEY: Your Honour, with
> respect, is getting back to Stapley v Gypsum Mines where Lord Asquith
> said we are not philosophers. FRENCH CJ: I thought I was just talking
> ordinary logic, but - - - MR TOOMEY: We do not follow philosophical
> cause, we follow legal cause and - - - ... MR MACONACHIE: It is, your
> Honour. I am sure it is referred to in our written submissions. Now, I
> had a marked up copy of both Betts and Bradshaw's Case. Can I take you to
> Bradshaw's Case at page 5, your Honours. Perhaps page 6 is where it
> occurs most clearly: ...
>
> There is a reference to Lord Robson who might also be a Scotsman,
> your Honour -
>
>
>
>
>
>