March v Stramare

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Citation: March v (E & M) Stramare Pty Ltd (1991) 171 CLR 506

This information can be found in the Textbook: Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 474-9 [13.30] or accessed here.

Contents

Background facts

  • The Defendant [Stramare] parked a truck in the middle of the road whilst they were unloading items into a shop. This was in the early hours of the mornings.
  • The Plaintiff [March] was driving (speeding and drunk) and hit into their truck, suffering physical damages.

Argument

  • The Defendant alleges that it was the negligent driving of the Plaintiff which was the cause of his harm, and not the Defendant's negligence in parking the truck.

Legal issues

Judgment

Mason CJ:

  • "I do not accept the 'but for'... test ever was or now should become the exclusive test of causation in negligence cases.[1]"
  • Neither is reasonable foreseeability a test for causation.
    • The 'but for' test fails on two accounts - cases which involve multiple causes and cases in which there is an intervening act.
  • "The 'but for' test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury...the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations.[2]
    • "In similar fashion, the 'but for' test does not provide a satisfactory answer in those cases in which a superseding cause, described as a novus actus interveniens, is said to break the chain of causation.[3]"
  • In such cases, a value judgment of common sense is needed to supplement the but for test.[4]"
  • With regards to an intervening act - an act cannot be considered an intervening act (which breaks causation) if that act was also the result of the original tortfeasor's negligence.
    • "As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things.[5]"
  • In conclusion, the causation test is divided into two subcategories:
    • Fact: the 'but-for' test
    • Law: further public policy considerations and value judgements.

McHugh J:

  • An application of the 'but-for' test in conjunction with “common sense” means the tribunal of fact apply their own idiosyncratic value judgements.
  • "In general, however, the 'but for' test should be seen as the test of legal causation. Any other rule limiting responsibility for damage caused by a wrongful act or omission should be recognised as a policy-based rule concerned with remoteness of damage and not causation.[6]"

References

  1. (1991) 171 CLR 506 at [1] (Mason CJ)
  2. (1991) 171 CLR 506 at [22] (Mason CJ)
  3. (1991) 171 CLR 506 at [23] (Mason CJ)
  4. (1991) 171 CLR 506 at [24] (Mason CJ), quoting M'Kew v. Holland and Hannen and Cubitts ((1970) SC (HL) 20
  5. (1991) 171 CLR 506 at [27] (Mason CJ)
  6. (1991) 171 CLR 506 at [21] (McHugh J)
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