The 3 new UK Supreme Court decisions will no doubt keep lists members busy for some time. However, may I revert briefly to the discussion on causation that preceded those decisions? Like Richard Wright, I admire Neil Foster’s ability to keep up with the law in multiple jurisdictions. On this occasion, he might have drawn attention to a passage in a recent joint judgment of the ultimate appellate court in his and my home jurisdiction, Swan v The Queen [2020] HCA 11 (18 March 2020), which demonstrates that in some circumstances it is appropriate to use causal language when attributing legal responsibility to a wrongdoer even though the outcome would have been the same if the wrongdoer had not acted.

In an avowedly obiter statement in Australian Competition and Consumer Commission v Valve Corporation (No 7) [2016] FCA 1553 (23 December 2016) at [25]-[26], Edelman J had stressed that in his view it was essential to separate the concepts and “labels” of contribution and causation. He said there: “Something which makes no difference to an outcome does not ‘cause’ the outcome. Causation requires that the event is necessary for the outcome.’ This is contradicted by paragraph [25] of the joint judgment in Swan, in which Edelman J himself participated. In Swan, the accused was charged with murder, no less. A 1900 NSW statute defined the circumstances in which an act of the accused, “causing the death charged” (emphasis added), amounted to murder and not some other form of homicide. The accused attacked the victim on 15 April 2013 in circumstances covered by the statute. The victim died on 10 December 2013 after having spent some time in an aged care institution, fallen out of bed and deliberately not been subjected to surgery which could have been expected to be successful. Upholding the conviction, the High Court of Australia held that there was evidence on which a jury could find the accused guilty of murder. It was accepted in the High Court, that there was evidence on which the jury could find that the Crown, as it was required to do, had proved beyond reasonable doubt that the death was not caused by another illness from which the deceased was suffering. Examining the evidence in great detail, the High Court also held that there was evidence on which the jury could hold that the Crown had proved beyond reasonable doubt the decision not to operate was taken because of the effect on the victim’s quality of life by the attack on 15 April and not for some other reason.

In this context, the court referred (at [25]), in my opinion correctly though unnecessarily, to “some cases where an accused will be legally responsible for a death even if the act of the accused was not, by itself, necessary for the victim's death but was instead "one of the conditions which were jointly necessary to produce the event". It noted that an “exceptional example where an accused might be held legally responsible for the death of another even if the act of the accused was not by itself necessary for the victim's death is where a victim ‘dies from the combined effects of ... two wounds’, either of which would have been sufficient for death but only one of which was inflicted by the accused.”

The example given by the High Court applies, of course, also in tort. It would be artificial to say that legal responsibility was being attributed to the wrongdoer without also saying that the wrongdoer had caused the death.