Robert and I agree that the election of the candidate in his
electorate is not "a mysterious un-caused event". There are other
well-known examples of the attribution of responsibility where the
outcome would have been the same without the act of the wrongdoer:
the two hunters firing simultaneously at the victim and each
causing wounds sufficient to kill even if the other had not
fired;
the two fires started separately but combining to destroy the
house when one alone would have done so;
the group of people pushing the car over the cliff when there
were more than enough to achieve this purpose;
the factory polluting the stream which was already polluted
by others;
the company directors making up the necessary quorum and
voting in favour of the company acting unlawfully where the
absence of any one of them would have made no difference.
None of these is "an uncaused event". They all satisfy statutory
language, like that in the section under which Swan was
convicted, that the act of the individual "caused" the outcome.
"As a matter of the English language", it is therefore not
"ridiculous" to say that one person's act "caused" the outcome,
though the outcome would have been the same without the act in
question. Edelman J was therefore wrong in the earlier judgment
when he said (my emphasis): “Something which makes no difference
to an outcome does not ‘cause’ the outcome. Causation requires
that the event is necessary for the outcome." The
contradiction with upholding the conviction in Swan remains.
The Civil Liability statutes in Australia, under the heading
"Causation", state that a determination that negligence or breach
of duty "caused" the harm comprises, as its first element,
"factual causation". This is ordinarily proved by showing that the
breach of duty was a necessary condition of the occurrence of the
harm (as the courts have said, by the application of the familiar
"but-for" test). The statutes go on to allow the courts to
determine "in an exceptional case, in accordance with established
principles", that factual causation is satisfied when it cannot be
proved that the breach of duty was a necessary condition of the
occurrence of the harm. For a court to determine in these
exceptional cases that the wrongdoer's act factually caused the
harm when the outcome would have been the same without the act
does not "do violence to the English language".
Let me end on a note of agreement with Robert. He is undoubtedly
correct in saying that "factual relations of causing or
contributing to an event may be necessary to establish
responsibility, but insufficient". In Swan, it would have
been possible for a court to hold that, even though it had been
proved that the accused's act was necessary for the victim's
death, responsibility should not be attributed to the accused
because of the extraordinary chain of later events.
I also agree with Robert in hoping all our colleagues keep well
in the present extraordinary circumstances.
Best wishes,
Harold.
On 4/04/2020 3:20 am, Robert Stevens wrote:
"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."
I do not agree, and think there is no inconsistency between
the two statements in the different judgments by Edelman J.
He is right, I think, to distinguish in Swan between
contribution and causation.
An example I like is that of voting. Say I vote for the
successful candidate in a by-election here in East Oxford
where I am currently confined. The successful candidate gets
25,000, the closest challenger 10,000, a majority of 15,000.
Did my vote *cause* the election of the winner?
As a matter of the English language, it seems (at least to
me) to be ridiculous to argue (as some have) that I did so.
I made no difference to the outcome.
Did my vote contribute to the victory? Yes of course. It is,
if we like that language, a necesary element of a (number
of) sufficient sets bringing about that result.
If my individual vote did not cause the result, no other
individual vote caused the result. Does that make it a
mysterious un-caused event?
Of course not. We can say of any of the actual real world
set of 15,000 votes that they caused the victory (remove
them and the victory disappears).
Alternatively, we could say that 10,001 votes caused the
victory, as that is the number necessary for a majority.
But saying, as some acadmics urge us to do, that any
individual vote caused the result seems to me to do violence
to English.
Does that mean that my vote is not responsible for the
result? I don't think (as so many writers seem to have
assumed) that in order for an outcome to be my
responsibility that it is necesssary to show that it was
caused by my action. Rather it suffices to show that my
action contributed to it. Each individual voter who voted
for the successful candidate is to some degree responsible
for her victory (as is everyone who did not vote for an
opponent).
All causes contribute, not all contributions cause. Everything
that contributes is in part responsible.
I gave a lecture in Canada years ago saying this. I had a nasty
cold and so am even more nasal than usual.
So, I agree with Edelman J. It is important that we distinguish
between causation and contribution (Swan). It is legitimate for
the law to treat those who merely contribute as responsible
(ACCC v Valve), just as we do outside it.
The mistake is to think that being responsible for something
necessarily entails that you caused it.
It follows that I do not think talking of "causal contribution"
helpful, as it seeks to elide the distinction, that is reflected
in English usage, between causing something and contributing to
it. I also think the US Restatement's language of "scope of
liability" is a retrogade step, and worse than the older
terminology it replaced. "Liability" is not synonymous with
"responsibility". Liability means (roughly, in our context)
being subject to the power of another to be sued. Lots of things
limit that (eg the expiry of a limitation period). What is
really meant by "scope of liability" is "scope of
responsibility." The factual relations of causing or
contributing to an event may be necessary to establish
responsibility, but insufficient.
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.