Dear Richard, David, et al;

I think I will maintain my view that over-determined causation cases, while they may well happen in the real world in situations you mention, do not actually reach the courts very regularly in situations where the difference between NESS and "but for"  makes a difference to the outcome.

Richard, your reference to Bonnington Castings Ltd v Wardlaw [1956] AC 613 as an example of such suggests to me that you are using the phrase in a way that is not consistent with the Australian approach, at least (or what I think is the orthodox common law approach). Long-term ODG readers will have heard me say this before, but let me repeat. In short, it seems to me very well established now that Bonnington is not an "exception" to the "but for" approach- it was decided entirely within the "but for" test. Pardon me in the following for recycling some stuff I have had said before.

In  Bonnington the worker was injured by the cumulative effect of dust from 2 sources, one of which could not have been prevented, the other of which could have been prevented. This "guilty" dust, to use a description some have applied, was far less in proportion to the total than the "innocent" dust. But the court held that, so long as the dust which could have been prevented made some real contribution to the harm, it could be held to be a cause of the harm. What they meant by using the phrase "material contribution" was a contrast with a possible view that it could only be a cause if it was the sole or "majority" contribution. They did not mean that the guilty dust was not a "but for" cause of the harm. Clearly it was: the disease was only caused as a result of the accumulation of both sorts of dust, and without the contribution of the "guilty" dust would not have occurred.

As Lord Reid summarised the situation on p 620: the plaintiff "must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury". I think this quote is what may have led some to think that the decision contrasts "but for" with "material contribution". That is not what his Lordship means. Words have to be read in context! The word "caused" in that quotation has the sense "solely caused" or "strongly caused" or something similar. The contrast is not between "causation" simpliciter and "material contribution", but between a large contribution to the cause and a minor, but still material, contribution.

The rest of Lord Reid's judgment fits in with this view. At no point is there any suggestion that this an exception to the "but for" principle. The dust from the unlawfully guarded machine was (if I can venture to use NESS terminology) a necessary part of the sufficient set of events that led to the harm, even if it was only a small element of that set in relation to the other dust. Lord Reid says at 622:

"It is therefore probable that much the greater proportion of the noxious dust which he inhaled over the whole period came from the hammers. [The lawful machine.] But, on the other hand, some certainly came from the swing grinders [the unlawful machine], and I cannot avoid the conclusion that the proportion which came from the swing grinders was not negligible". Hence it made a "material contribution".

My view on Bonnington as an example of, not an exception to, the "but for" rule has in my view been supported in the High Court of Australia's mention of the case in recent years. See Roads and Traffic Authority v Royal [2008] HCA 19 (14 May 2008) at [85]; Amaca Pty Ltd v Ellis [2010] HCA 5 (3 March 2010) , [67]-[68]; Amaca Pty Ltd v Booth itself at [70], all of which assume that Bonnington is an example of "but for" but dealing with the question of the approach to be taken where there are multiple causes, some of more weight than others.

Richard, when you say that "'caused or contributed to' [is] the usual formulation when going beyond 'but for' causation", I have to concede that you are correct that some over the years have said this, but in my view it is wrong. I even have the hide to say that occasionally some members of the House of Lords have contributed to the confusion- see Lord Rodger in the House of Lords' decision in Fairchild at [14] who with respect gets it wrong when he says that Bonnington Castings is not a case of "but for" causation. As I say, I think the confusion has arisen from reading the words of Lord Reid,  "caused or materially contributed", out of context from the decision in which they were pronounced.

Regards

Neil

 

Neil Foster
Senior Lecturer
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/




>>> "Wright, Richard" <Rwright@kentlaw.edu> 12/18/11 5:51 AM >>>

I was initially puzzled by the apparent inconstency as well.  But, upon furher consideration of the quoted (admittedly not crystal clear) language, it seemed to me that the court was taking the 'threshold' requirement as being the requirement of factual causation, prior to the further issues of legal causation, rather than the 'but for' test as the threshold.  When discussing factual causation, the court mentioned 'caused or contributed to' (the usual formulation when going beyond 'but for' causation) and then NESS (the more precise formulation).

 

I expect that David is very happy that the court mentioned a Canadian case and, what is more, one of the last fairly coherent Canadian cases: Athey.

 

There are actually a very large number of real life situations involving overdetermined causation, Neil, including especially multiple-source pollution and toxic exposure (duplicative causation) cases as well the successive (preemptive) injury cases that David mentions and the traditional multiple fire, flood, etc cases.  A well-known one is Bonnington Castings (have I recalled the name correctly?).

________________________________

From: David Cheifetz [mailto:david.cheifetz@rogers.com]

Sent: Sat 12/17/2011 8:28 AM

To: Neil Foster; obligations@uwo.ca

Subject: Re: ODG: Amaca v Booth- HCA on causation in asbestos cases

Dear Neil,

 

Much appreciated.

 

What's effectively contemporaneous  duplicative causation may be unusual but not it's not that rare. It happens every time we (in the quasi) polar climes have a multiple vehicle pile-ups during a bad snowstorm because any number of idiots attempt to drive through white-out conditions. I suspect you have similar issues along your coasts with fog. Maybe its not actually simultaneously because there was a few minute gap between the times the north bound cement truck and the south bound gasoline tanker - I mention this in honour of the apparently forthcoming Mad Max 4 - but for all intents its contemporaneous. Putting aside those cases, duplicative causation that the courts deal with regularly (at least in this country) is successive accidents where each is capable of causing the same loss, even without the other. Baker v. Willoughby makes that much clear enough. On top of that, there's all the cases where the plaintiff has pre-existing conditions sufficient of themselves, etc. And, of course, the Jobling situation of the subsequent natural event sufficient of itself. We make non-causation based policy decisions whether to assign legal responsibility, and to whom, in those cases, no?

 

I appreciate that wasn't the issue in Booth, as the joint reasons state at [70]-[71] but (for me) the verbal dodge of "contributed" explains nothing. Given that "contribute" is used to mean "caused" the not so rhetorical question that no Commonwealth court (claiming adherence to some version of a material contribution to injury test) that I know of has been willing to address  - I'm not posing it to you - is: "what's the test to be used for determining whether X contributed to Y" if you're not using the but-for test?"  That elision, I suggest, exists in [70]-[71].

 

Regards,

 

David

 

From: Neil Foster <Neil.Foster@newcastle.edu.au>

To: David Cheifetz <david.cheifetz@rogers.com>; "obligations@uwo.ca" <obligations@uwo.ca>

Sent: Saturday, December 17, 2011 3:26:44 PM

Subject: Re: ODG: Amaca v Booth- HCA on causation in asbestos cases

Dear David;

Let me tell you how this appears from the perspective of one who only dips into causation issues occasionally. The following is no doubt simplistic but it is the best I can do when my brain is starting to shut down for Christmas.

French CJ and the rest of the court want to say that someone can be responsible for harm only when it has been proven on the balance of probabilities that they were a cause of the harm. (They do not want to accept the Fairchild, "harm can established by showing increase in risk", analysis.) The orthodox causation test requires a threshold question: "but for" the action of X, would the harm have occurred? However, there are some theoretical and very rare cases (where two independently acting events would each have caused the harm) where we want to say that each actor was a "cause" even though the but for test does not work. For these cases we will accept the NESS analysis as establishing cause. The fact that as far as I am aware real life cases of independent simultaneous cases are virtually non-existent means that adopting the NESS analysis is a helpful theoretical tool but does not in practice detract from continuing to use the "but for" test as the practical "gateway" to a finding of causation.

I have no doubt succeeded in trivialising or mis-stating some important features of the analysis, but I think that is how most lawyers in Australia would read the judgement.

Regards

Neil

Neil Foster

Senior Lecturer

Newcastle Law School

Faculty of Business & Law

University of Newcastle

Callaghan NSW 2308

AUSTRALIA

ph 02 4921 7430

fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/

>>> David Cheifetz <david.cheifetz@rogers.com> 12/17/11 2:28 PM >>>

Neil,

It's puzzling to me that French CJ (or any of the rest of the panel)  missed the inconsistency in paras. 47-48 of French CJ's reasons. Or at least the doctrinal problems even if one is not prepared to describe them as an inconsistency.

Para. 47 says that the but-for test is still the threshold for factual causation in Australia; states that "that threshold must  also be surmounted in the case of concurrent or successive tortious acts" (followed by a "caused or materially contributed to" cant  seeming equated with but-for in a quotation from from March). Then, in the last sentence of para. 48,  French CJ seems to acknowledge NESS could be valid. I admit to missing the connection between the penultimate and last sentence, if the penultimate isn't a concession that necessity isn't required where the question is whether this X caused that Y.

    1. The  distinction between a statistical correlation and factual causation precedes any  consideration of the distinction between factual causation and legal causation  which was discussed in March v E & M H Stramare Pty Ltd[57]. Factual causation  which can be established by the application of the "but for" test is "the  threshold test for determining whether a particular act or omission qualifies as  a cause of the damage sustained."[58] That threshold must also be surmounted in the  case of concurrent or successive tortious acts[59]:

"it is for the plaintiff to establish that his or her injuries are  'caused or materially contributed to' by the defendant's wrongful conduct ...  Generally speaking, that causal connexion is established if it appears that the  plaintiff would not have sustained his or her injuries had the defendant not  been negligent".

    2. The  threshold requirement still holds good in Australia[60]. As appears from the 10th edition of Fleming's The Law of Torts[61]:

"The first inquiry involves the factual question whether the  relation between the defendant's breach of duty and the plaintiff's injury is  one of cause and effect in accordance with objective notions of physical  sequence. If such a causal relation does not exist, the plaintiff has no  actionable claim in negligence. To impose liability for loss to which the  defendant's conduct has not contributed is incompatible with the principle of  individual responsibility upon which the law of torts is based." (footnotes  omitted)

        Factual causation does not requirethat the propounded cause  be one link in a chain of causative factors or events. It may be, as some  commentators have suggested, a "necessary element of a sufficient set" of  causes[62].

>

Note [62] is Richard Wright's "NESS Account". It seems that a bit puzzling (at least to me) that somebody adequately informed would cite "NESS Account" as an explanation of factual causation in the same breath as a claim that the but-for test is the threshold for findings of singular causation in duplicative causation cases.

Cheers,

David

________________________________

From: Neil Foster <Neil.Foster@newcastle.edu.au>

To: obligations@uwo.ca 

Sent: Tuesday, December 13, 2011 11:04:36 PM

Subject: ODG: Amaca v Booth- HCA on causation in asbestos cases

Dear Colleagues;

The High Court of Australia handed down its decision in Amaca Pty Ltd v Booth; Amaba Pty Ltd v Booth [2011] HCA 53 (14 December 2011) http://www.austlii.edu.au/au/cases/cth/HCA/2011/53.html today. This was an appeal supposedly related to whether or not evidence of increase in risk could be accepted as establishing causation in a personal injury claim based on exposure to asbestos. It was hoped that the Court would offer some clarity on whether or not Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 represents the common law of Australia.

Formally the court has once again declined to rule on that specific point (see eg French CJ at [52] "not necessary in this case to consider the application of any modified

concept of causation of the kind developed in Fairchild"). The court was able to rule in favour of the injured worker here because the trial judge had not based his decision on the "increased risk" theory, but instead had accepted the evidence of medical experts provided by the plaintiff. (For some odd reason, the defendants offered no medical experts on the issue.) The evidence of those experts satisfied the judge that "all exposures to chrysotile asbestos,

other than trivial or de minimis exposure, occurring in a latency period

of between 25 and 56 years, materially contribute to the cause of

mesothelioma" (quoted at [75] by Gummow, Hayne & Crennan JJ).

This, it will be appreciated by those who follow these issues, is different expert testimony to that accepted in Fairchild, where it was held that a single fibre might have caused the disease, and hence it was impossible to distinguish between exposures for which three separate employers were responsible. Acceptance of the view that, the more fibres, the greater chance of the disease, allowed the judge to find that exposure of the plaintiff in 27 years' of work for the two defendants was, on balance of probabilities, a material cause of the disease (rather than that it was caused by background exposure or a couple of other brief exposures for which neither was responsible.)

The difference in medical testimony was accepted by the members of the majority (separate judgements by French CJ, and by Gummow, Hayne and Crennan JJ; Heydon J dissenting) as establishing the main reason why Fairchild did not need to be considered (and similarly why Sienkiewicz v Greif

(UK) Ltd [2011] 2 WLR 523; [2011] 2 All

ER 857 was not relevant- see [81] where Gummow J et al point out that the UKSC in the latter case explicitly said it was accepting the state of the medical evidence accepted in the earlier decision.)

However, the "vibe" of the HC decision was certainly not in favour of adopting the Fairchild approach should it ever become relevant. See eg French CJ at [52] commenting that the result of that case was that  "a new head of tortious liability

appears to have been

created". Presumably his Honour means (as I think was accepted by implication in Barker) that a cause of action based on increased risk is a different "animal" to a tort action based on proven harm. Given the general reluctance of the High Court to create new causes of tortious action, I don't really see much scope for Fairchild to be adopted in Australia in the future.

The dissent of Heydon J involved a detailed analysis of the expert testimony to show that it did not, in fact, lead to the conclusion that the trial judge had accepted. There is no doubt much more to be said on this issue.

There are, of course, references to articles by ODG participants Jane Stapleton and Richard Wright in the High Court's decision, as well as evidence of careful review of other current literature (eg the volume Perspectives on Causation edited by Richard Goldberg is cited.)

Regards

Neil

  

Neil Foster

Senior Lecturer

Newcastle Law School Faculty of Business & Law

MC158, McMullin Building

University of Newcastle Callaghan NSW 2308 AUSTRALIA

ph 02 4921 7430 fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/