From: Sandy Steel <as730@cam.ac.uk>
To: "Wright, Richard" <Rwright@kentlaw.edu>
Cc: Martin Hogg <mhogg@staffmail.ed.ac.uk>; David Cheifetz <david.cheifetz@rogers.com>; obligations@uwo.ca
Sent: Sunday, September 25, 2011 10:58:41 AM
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
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> 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
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> 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!
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> 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).
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> 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.
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> Martin Hogg
> Edinburgh Law School
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> On 24 Sep 2011, at 17:29, David Cheifetz wrote:
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>        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 -
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