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Reflections on Common Sense Causation in Australia

Torts in Commercial Law, Eds. Degeling, Edelman and Goudkamp (Thomsons, 2011) 331-365

36 Pages Posted: 10 Jun 2013  

Jane Stapleton

University of Cambridge - Faculty of Law

Date Written: 2011

Abstract

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.

Keywords: factual causation, scope of liability, "common sense"

JEL Classification: K10, K13, K32

Suggested Citation

Stapleton, Jane, Reflections on Common Sense Causation in Australia (2011). Torts in Commercial Law, Eds. Degeling, Edelman and Goudkamp (Thomsons, 2011) 331-365. Available at SSRN: https://ssrn.com/abstract=2276809 or http://dx.doi.org/10.2139/ssrn.2276809

Jane Stapleton (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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