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 –