27 although lord hoffman m a y have established the

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Unformatted text preview: ther explanation that the presence of an arsonist workman or lightning happening to strike at that time and place was a coincidence.27 Although Lord Hoffman m a y have established the importance of context in matters of causation, he failed to define clearly the underlying principles of how the court will assign blame for a loss through the issue of causation. This was recognised by Kirby Chappel: [Both in common law courts and civil law courts] the courts have searched for principles to provide a "filter to eliminate those consequences of the defendant's conduct for which he [or she] should not be held liable". The search sets one on a path of reasoning which is inescapably "complex, difficult and controversial". The outcome is a branch of the law which is "highly discretionary and unpredictable". Needless to say, this causes dissatisfaction to litigants, anguish for their advisers, uncertainty for judges, agitation amongst commentators and friction between . . professionals and their legal counterparts.28 . Kirby J. then assessed the impact this approach might have on litigants: A s Dixon CJ, Fullager and Kitto JJ remarked in Fitzgerald v Penn "it is all ultimately a matter of c o m m o n sense: and "[I]n truth the conception in question [i.e. causation] is not susceptible of reduction to a satisfactory formula". Similarly, in Alphacell Ltd. v Woodward, Lord Salmon observed that causation is "essentially a practical question of fact w hich can best be answered by ordinary c o m m o n sense rather than by abstract metaphysical theory." Yet, a losing party has a right to k n o w w h y it has lost and should not have its objections brushed aside with a reference to "commonsense", at best an uncertain guide involving "subjective, unexpressed and undefined extra-legal values" varying from one decision-maker to another. Nevertheless, despite its obvious defects, the commonsense test has been embraced by this Court as a reminder that a "robust and pragmatic approach" to such questions is the one most congenial to the c o m m o n law.29 27 Empress Car Company (Abertillery) Ltd. v National Rivers Authority (unreported) House of Lords 5 February 1998, at p. 6 per Lord Hoffman. 28 [1998] H C A 5 5, p. 19. 29 Chappel per Kirby J. at p.22 203 T he issue of causation deals with the link between the defendant's action and the loss claimed. The issue of remoteness, or proximity30, deals with the link between the losses and the burden placed upon the defendant by the court to give recompense for them. In effect "[q]uestions of proximity are concerned with whether the law should permit the plaintiff to recover from the defendant for the kind of damage which he has allegedly suffered" . It must be stressed, therefore, that the scenario can arise where a reasonable person may conclude that the defendant 'caused' the plaintiffs loss, but the court will not enforce a pecuniary burden upon the defendant for the act or omission for which there is complaint because of the legal rules determining the recovery of certain types of damage, or upon notions of public policy. In law the question to be answered is not "what caused this injury?" but "did the fact that the defendant did so-and-so (where soand-so constitutes a basis of liability, such as negligence or breach of contract) cause the injury?"32 'Cause', therefore, does not necessarily mean that some initiating force was put into being by an act or omission which set in motion a chain of events where damage became inescapable. Concepts of risk, probability of the defendant being responsible, alternative causes, and hypothetical circumstances are finely balanced by the court, to seek the final goal in the court's eyes, which is to 'do justice' between the parties. The lingering spiritual duty of the ancient English monarch to administer justice to his subjects, as noted in Chapter Three, is still alive within the common law courts of the 21st century. 30 The issue of proximity in this context deals with nearness and is used in other ways in conjunction with the issue of whether or not a defendant's action were the proximate cause, or the nearest cause. This term is used more widely in the U S A jurisdictions. 31 DiLallo 1990, "The Measure of Damages in Contract", in B LEC 1990, Damages in Contract and Tort, pp. 239-260 at 243-4. 32 Honore 1999, p. 2. 204 A rea of Risk Test It was mentioned above that sometimes courts make a presumption of causation. The court may do so if an injury occurs to a plaintiff within an area of risk created by a defendant. Thus, in McGhee v National Coal Board63 (1973), the defendant was held liable to a plaintiff who suffered loss from severe dermatitis which the court found was caused by the negligence of the defendant in not providing washing facilities for the plaintiff who worked in the defendant's brick kilns. As the court found that the defendan had materially increased the risk of dermatitis occurring, the plaintiff was able to reco damages for the injury. B ut the question remains whether a pursuer must necessarily fail i...
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