Hi Guys. This debate demonstrates yet again why the attempt to separate "factual" causation from legal responsibility is futile and pointless--as Hart and Honore postulated almost 50 years ago. The only issue, it seems to me, is determining when it is morally sound to attribute responsibility for harm to someone other than the victim. The only sensible answer, again it seems to me, is when someone other than the tort victim increased the risk of a harmful consequence beyond the "background" factors of everyday life. If so, then that person needs to assume the economic consequence of his actions rather than slough it off on the innocent victim.

David R Wingfield

----- Original Message -----
From: Sandy Steel [mailto:as730@cam.ac.uk]
Sent: Sunday, December 18, 2011 07:45 PM
To: Neil Foster <Neil.Foster@newcastle.edu.au>
Cc: Goldberg, Dr Richard S. <r.s.goldberg@abdn.ac.uk>; Robert Stevens <robert.stevens@ucl.ac.uk>; Wright, Richard <Rwright@kentlaw.edu>; David Cheifetz <david.cheifetz@rogers.com>; obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: ODG: Amaca v Booth- HCA on causation in asbestos cases

Dear Neil,

Thanks for your reply; sorry (everyone) to come back on this again...

You wrote:

"But for" the combined effect of the two types of
> dust the disease would not have happened.

All I would say is that this statement needs some qualification. I do not
think it is true to say that on the balance of probability the disease
would not have happened at all. It is likely (as Lord Keith said) that it
would not have happened when it did. The defendant should only have had to
pay for the losses up to the point when the disease would have happened
without his breach of duty. But he paid for all of the losses. So we
probably want to try to explain why he paid for all of the losses when he
wasn't a but-for cause of all of them. I said it was 'unhelpful' only to
indicate that some explanation is necessary. That the issue wasn't raised
is one explanation.

Incidentally, there do seem to be other early uses of the phrase 'material
contribution' than the one you cite from Wakelin (and I fully agree with
your analysis of that usage) - David Ibbetson and I briefly suggested one
in an article in the July CLJ from this year, based on C19 Scots nuisance
cases.

All best wishes
Sandy

On Dec 18 2011, Neil Foster wrote:

> Dear Richard G, Sandy and other colleagues; I don't want to keep circling
> the same issue all the time, but I really can't let these last two
> remarks go unchallenged. Why is it "unhelpful" to characterise the case
> as what it actually was? By perpetuating the myth that there is something
> "extra" added to causation by Bonnington we allow the sort of odd
> comments that David has cited from the Canadian courts to continue, and
> also the mis-understanding of the phrase "material contribution" which
> has been repeated at the highest levels. True, we may want to reanalyse
> the facts through the lens of later cases dealing with apportionment. But
> that is not what the decision itself does. (And of course there was no
> sense in discussing apportionment in the case, because all the relevant
> sources of harm, both "guilty" and "innocent", were under the control of
> the one defendant.) With respect, to say that the case is "a mitigation
> of the strict application of the but for test" is just not true. The "but
> for" test was applied. "But for" the combined effect of the two types of
> dust the disease would not have happened. It has never been a correct
> analysis of the "but for" test to say that you need to identify only a
> single, or even a "substantial", cause. Applying the test in this case is
> not mitigating anything, it is just applying the test. In the decision
> (which, in case colleagues don't have ready access to the official
> reports, is also available at
> http://www.bailii.org/uk/cases/UKHL/1956/1.html ) Lord Reid is clear that
> he is rejecting any view that a "mere possibility" of harm can establish
> causation: He says that Parliament cannot have intended
>
> that any employee suffering injury can sue his employer merely because
> there was a breach of duty and it is shown to be possible that his injury
> may have been caused by it. In my judgment, the employee must in all
> cases prove his case by the ordinary standard of proof in civil actions:
> he must make it appear at least that on a balance of probabilities the
> breach of duty caused or materially contributed to his injury.
>
> This comment makes perfect sense so long as one steadfastly reminds
> oneself that when his Lordship says "causes or materially contributed" he
> means "was either the sole cause of, or was one of a number of causes
> of". It makes no sense at all if his Lordship was intending in some way
> to "adjust" the ordinary "but for" test. Incidentally I note that in
> Amaca v Booth the High Court at [70] cite one of the first occurrences of
> the phrase "cause or materially contribute" as being in the judgement of
> Lord Watson in Wakelin v London and South Western Railway Co (1886) 12
> App Case 41 at 47. That was a case where the plaintiff's husband had been
> found dead on a level crossing but she could not produce any evidence to
> show that carelessness on the part of the railway company had caused the
> accident. Lord Watson at 47 clearly uses the phrase "material
> contribution" as a synonym for "cause". He says, for example, that the
> question of liability depends on whether "there was some negligent act or
> omission on the part of the company or their servants which materially
> contributed to the injury or death complained of". Later on the same page
> he then says: "the plaintiff must allege and prove, not merely that [the
> defendants] were negligent, but that their negligence caused or
> materially contributed to the injury". The phrase "materially
> contributed" is essentially epexegetical, explaining what he means by
> "caused". It is not a different test. Regards Neil
>
>
>
>On 19/12/2011, at 8:37 AM, Goldberg, Dr Richard S. wrote:
>
>> In my view, the best way to describe Bonnington is not as a but-for
>> causation case (which I agree with Sandy is unhelpful), but as a
>> mitigation of the strict application of the but for test.
>>
>> Richard
>>
>> Dr Richard Goldberg Reader in Law School of Law Taylor Building King's
>> College University of Aberdeen Old Aberdeen AB24 3UB Tel: 012224 272745
>> ________________________________________ From: Sandy Steel
>> [as730@hermes.cam.ac.uk] On Behalf Of Sandy Steel [as730@cam.ac.uk]
>> Sent: 18 December 2011 19:16 To: Robert Stevens Cc: Wright, Richard;
>> Neil Foster; David Cheifetz; obligations@uwo.ca Subject: RE: ODG: Amaca
>> v Booth- HCA on causation in asbestos cases
>>
>> To say Bonnington is a but-for causation case is in itself unhelpful.
>>
>> It is necessary (as ODG-ers have pointed out) to define the damage in
>> respect of which but-for causation was established.
>>
>> The happiest interpretation would then be Rob's: D's breach of duty
>> caused some segment of the overall damage, because the breach made the
>> disease worse in extent. But, since apportionment wasn't before the HL,
>> C succeeded in full.
>>
>> But the judgments are just ambiguous with regard to that view of the
>> causal mechanism. This theory that "the more you are exposed, the worse
>> the extent of your injury" was stated by counsel in the Court of
>> Session, but it's not clearly accepted by the judges in the HL (even if
>> in 2011 we know that this is the mechanism).
>>
>> Lord Keith says that the disease probably wouldn't have happened when
>> it did but for D's breach. If the above causal mechanism was assumed,
>> then this would be an odd thing to say (even if logically consistent
>> with such a view of the mechanism). It also makes the defender's
>> argument that the disease would have happened anyway look pretty much
>> incomprehensible if that was the disease mechanism assumed.
>>
>> My nit-picking point is that Rob is right, but in the HL this was not
>> for the reason that the disease is made cumulatively worse by exposure.
>> Rather the disease was treated as indivisible, but its occurrence was
>> accelerated by D's breach. (This is a pretty fine point). As Bailey in
>> LS 2010 points out, it should then have been the case that C recovers
>> only for the loss up to the point where the indivisible injury would
>> have occurred anyway. That question was not addressed, and so C
>> recovered in full.
>>
>> Even if you could take from Bonnington that D was a cause of the
>> over-all disease even if D's breach did not accelerate the contraction
>> of the disease (and this becomes a logically possible interpretation if
>> the disease was treated as indivisible), it still remains to ask whether
>> the disease would have happened anyway (whether you treat this as a
>> causal (Rob) or non-causal (Richard, David) issue. And it's for that
>> reason, namely, that, on whatever view, you need to ask a further
>> question to determine the extent of liability, and that question was not
>> asked in Bonnington, that the case should not be cited for anything like
>> what it was in Bailey v MoD.
>>
>> Sandy
>>
>> On Dec 18 2011, Robert Stevens wrote:
>>
>>>
>>> However, there was no finding that it
>>>> was necessary for the disease, per se, rather than only
>>>> for(theoretically separable) increments in severity, under Rob's
>>>> theory, in which case the defendant should only be liable, under the
>>>> but-for test, for those increments?
>>>>
>>>
>>> Yes. The question of quantum of liability was not before the court.The
>>> HL in Bonnington Castings made no apportionment because the only
>>> quiestion argued before them was one of liability, not quantification.
>>> When the question of quantification has been argued in equivalent cases
>>> of increments in severity, an apportionment has, rightly, been made (eg
>>> Holtby v Brigham [2000] 3 All ER 421).
>>>
>>> Nobody would still be citing Bonnington Castings if it had not been
>>> cited for a proposition for which it did not stand in McGhee. Rob
>>>
>>>
>>>
>>
>>
>> The University of Aberdeen is a charity registered in Scotland, No
>> SC013683.
>
> 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/
>
>
>
>
>
>
>