Because the defendant is trying to escape liability, despite tortious
causation of the harm, within the normal scope of liability, merely
because of the fortuity that it would have happened anyway due to
nontortious causes. While I support that limitation on legal
responsibility given my understanding of the principles of justice, I
think the defendant should not be allowed to do so based on such
fortuity unless it is at least 'clear and convincing' that it would have
happened anyway, rather than being a mere probability or minimal belief
that it would have happened anyway.


-----Original Message-----
From: Sandy Steel [mailto:as730@hermes.cam.ac.uk] On Behalf Of Sandy
Steel
Sent: Sunday, September 25, 2011 7:34 PM
To: Wright, Richard
Cc: obligations@uwo.ca
Subject: RE: ODG: Blaming the Scots for the common law's factual
causation follies

Hi Richard

I agree with your analysis relating to the need for a non-causal
"attributable responsibility" limitation or a non-causal 'scope of
liability' limitation.

As a matter of English law, the claimant(outside of Fairchild/Barker
etc.)
has to prove that they have been made worse off by the defendant's
breach
of duty (or that even if their loss would have occurred anyway, that it
would have done so through a tort). I am aware (from your piece) that
some
American cases seem to suggest that once NESS causation is established,
the
burden of proof switches to D to show to a higher standard of proof than

the balance of probability that the injury would have happened anyway
through a non-tortious event. If that is the law, it seems odd. Normally
we
distribute burden of proof by reference to causes of action and defences

(and some normative grounding can be given, I think, to that position as
a
general rule). Even if the fact that the damage would have occurred
anyway
is correctly considered a defence (and this seems an open question), why

should it be shown to a higher standard than other defences - like
contributory negligence?

Best
Sandy




On Sep 25 2011, Wright, Richard wrote:

> 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 -
>>
>>
>>
>>
>>
>>
>
>