| From: | Wright, Richard <rwright@kentlaw.iit.edu> |
| To: | Robert Stevens <robert.stevens@law.ox.ac.uk> |
| Harold Luntz <hluntz@gmail.com> | |
| Njf663 <Neil.Foster@newcastle.edu.au> | |
| CC: | Obligations list <obligations@uwo.ca> |
| Date: | 07/04/2020 22:29:50 UTC |
| Subject: | Re: language of causation |
I accept that in all of these cases each individual defendant may both have committed a tort, and be liable for any loss following that is not too remote. It doesn't follow that each hunter caused the death, each fired caused the house to burn down etc. The point of my voting example is to try to show the, imo, ridiculous position attempts to argue that each of these individually causes the event in question leads to. The only difference with my voting example is that there we have thousands of actors, not just two or three.
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.
The syllogism writers in this area have been guilty of is, I think, something like this
- If a person's action causes an event, they are responsible for it.
- Here are cases where the law rightly treats the defendant's actions as responsible for the outcome
- Therefore these cases are all cases when an action causes an outcome.
And the result is an attempt to re-define "factual" causation as meaning something nobody outside the law would think it does.
Each individual in these cases contributed to the outcome, in the same way as the voter for the successful candidate. That contribution suffices to hold each of them responsible in law, in the same way as each individual voter is outside it.
It follows that I consider those who drafted the Australian Civil Liabilty Statutes to be guilty of precisely the syllogism above. They define "causation" to mean "contribution" in some cases to overcome the problem that responsibility doesn't always depend on causation.
The positive law in any jurisdiction can stipulate that black means white if it likes, but that doesn't make it true as a matter of fact, and doesn't mean that sat here in another jurisdiction I have to accept it.
From: Harold Luntz <hluntz@gmail.com>
Sent: 04 April 2020 03:26
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Obligations list <obligations@uwo.ca>
Subject: Re: language of causationDear colleagues,
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:
All causes contribute, not all contributions cause. Everything that contributes is in part responsible."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).
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.Keep safe Harold, and everyone else.bestRob
Dear Colleagues;
Thank you Harold, for noting these comments on causation in the criminal context. I did see Swan but pressure of other things (including switching to online teaching!) meant that I didn’t get an opportunity to comment here. I think I was also warned off by the possibility that causation in criminal matters seems to be treated somewhat differently from that in tort- see eg para [24]: “the requirement that the act of the accused cause the death charged required the jury to be satisfied that the act of the accused was "a substantial or significant cause of death" or a "sufficiently substantial" cause.’ That is clearly not the tort rule, where legal liability can be attached so long as the action of the defendant was one of a set of causes which together were necessary for the outcome, so long as the defendant’s action was not de minimis (ie it does not have to be “substantial”).
I won’t comment on Rob’s interesting distinctions between “contribution” and “causation” yet, I need to reflect on these a bit more. But for the moment it seems to me that the comments in Swan at [25] reflect the correct view of the law of tort as well as criminal law.
“[T]here are 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"” seems to me to accurately reflect the doctrine that an act can be regarded as a cause so long as it has made a “material contribution” to the set of events which was necessary for the outcome- see eg Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10:
[45] The law's recognition that concurrent and successive tortious acts may each be a cause of a plaintiff's loss or damage is reflected in the proposition that a plaintiff must establish that his or her loss or damage is "caused or materially contributed to" by a defendant's wrongful conduct. It is enough for liability that a wrongdoer's conduct be one cause. The relevant inquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss.
Also Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at 493 [106] where McHugh J noted:
“If the defendant's breach has 'materially contributed' to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage.”
We have had long discussions here before which I don’t want to resurrect about whether “material contribution” is an exception to “but for” causation. In my view it is not, but those who wish my detailed reasons can ask me off-line and I will endeavour to provide the answer.
The next remark in Swan at [25]: “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” seems to me to be an application of Richard’s NESS theory, which is becoming well accepted in Australia decisions. If the act of the defendant is a necessary element in a set of events sufficient to bring about the outcome, then it can be said to have “caused” the outcome, even if there is some other set of events which would also have caused the same outcome at the same time.
All the best in these trying times!
Regards
Neil
From: Harold Luntz <hluntz@gmail.com>
Sent: 03 April 2020 14:18
To: Obligations list <obligations@uwo.ca>
Subject: language of causation
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.
-----------------------
Thanks Neil. Personally I am not sure I would characterize that as sensible. [Irrelevant text deleted].
Lionel
From: Neil Foster <neil.foster@newcastle.edu.au>
Date: Tuesday, March 31, 2020 at 19:06
To: ODG <obligations@uwo.ca>
Subject: ODG- a brief mention of causation in tort in USSC
Dear Colleagues;
Just for something completely different- those collecting quotes on causation in tort law might at first be interested in a US Supreme Court decision (unanimous as to the main principle) that opens in this way:
Few legal principles are better established than the rule
requiring a plaintiff to establish causation. In the law of
torts, this usually means a plaintiff must first plead and
then prove that its injury would not have occurred “but for”
the defendant’s unlawful conduct.
The decision is COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN AMERICAN-OWNED MEDIA 743 Fed. Appx. 106 (March 23, 2020) and can be found here: https://www.law.cornell.edu/supct/pdf/18-1171.pdf . Sadly for common law torts lawyers, however, this introductory statement is only a preface to a detailed discussion of the elements of a claim for racial discrimination under 42 U. S. C. §1981, which guarantees “[a]ll persons . . . the same right . . . to make and enforce contracts . . .as is enjoyed by white citizens.” But the decision is that this wording means that a plaintiff must show that race was a “but for” cause of the decision to deny a contract, not merely a “motivating factor”. Seems a sensible decision.
Regards
Neil