Reflections on Common Sense Causation in Australia
University of Texas at Austin School of Law; Australian National University - ANU College of Law
Torts in Commercial Law, Eds. Degeling, Edelman and Goudkamp (Thomsons, 2011) 331-365
Part 1 of this chapter argues that the High Court of Australia’s so-called “common sense test” of causation is an empty slogan, neither a test nor anything to do with common sense. For clarity of legal analysis the issue of whether a factor was involved with the existence of the relevant phenomenon (that is, the issue of factual causation) should be kept explicitly separate from the issue of the appropriate scope of legal responsibility for that phenomenon. Expressing the latter scope issue as a “causal” issue is obfuscating and should be abandoned. This Part also argues: that Australian courts should cease referring to the “scope of the duty”; that a factor should be recognised as a factual cause if it contributes in any way to the existence of the phenomenon in issue even if it is neither a “but for” nor a sufficient factor for the existence of that phenomenon; and that aspects of the civil liability legislation prompted by the Review of the Law of Negligence: Final Report (the “Ipp Report”) can and should be ignored. Part II elaborates the “factual causation then scope-of-liability-for-consequences” approach with illustrations from the common law and under statute, including many of commercial cases.
Number of Pages in PDF File: 36
Keywords: factual causation, scope of liability, "common sense"
JEL Classification: K10, K13, K32
Date posted: June 10, 2013
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