Although appeal to social pragmatism has always

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Unformatted text preview: on, and remoteness all [tend] in the direction of denying full compensation" to the plaintiff. Although appeal to social pragmatism has always underpinned this limitation mechanism "as a practical necessity", philosophical justification is elusive. The characterisation of actions may dictate whether or not courts sanction defendants for losses of plaintiffs. If, for example, where a plaintiff might sue to recover additional sums for a lost commercial investment where funds intended for investment in, say, an IPO, were withheld from the plaintiff by the defendant's default, the defendant could show that the plaintiff could simply have borrowed the extra funds to have made up the lost sum, then it was no longer the defendant's actions which caused the loss, for the loss can then be characterized as a failure of the plaintiff to properly mitigate. This does not only affect the issue of causation, but also relates to mitigation of damages, which is -i 91 covered in a separate section below. In March v Stramare (E. & M.H.) Pty. Ltd. ( 1991) (March), the High Court of Australia confirmed its rejection of the 'but for' test (this damage would not have Occurred 'but for' the defendant's act or omission), as the principle test of factual causation. In its place, it preferred the "common sense view of causation which it had expressed in its decision in Fitzgerald v Penn" (1954).22 Mason C.J. pointed out in March that the purposes of the law, in seeking the foundation of Prosser, Torts p. 210, cited in Hart and Honore 1959, p. 99, note 2. It is difficult to segregate causation without intertwining notions of knowledge and responsibility into the discussion. Indeed, as Cardozo CJ of the N e w York Court of Appeals (as he then was) has said, "If no hazard was apparent to the eye of ordinary vigilance .. i did not take to itself the quality of a tort, though i happened to be wrong..." This .t t shifting standard in the eyes of the courts provides fruitful areas of discussion which, unfortunately, cannot be pursued in this dissertation completely. Palsgrafv. Long Island Railroad Company 248 N.Y. 339; 59 A.L.R. 1253. 20 W addams 1992, "The Principles of Compensation", in Finn 1992, Essays on Damages, L BC, pp. 1-13 at p. 3. 21 (1991) 171 C.L.R. 506. 201 causation, dictated a n alternative approach to that of the discipline of philosophy because the purpose of the results was different: In philosophy and science, the concept of causation has been developed in the context of explaining phenomena by reference to the relationships between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence.23 This has been confirmed by the High Court in a number of later cases, where the courts have upheld the 'common sense' approach. 4 The English House of Lords has also 9S reiterated support for this view. ' C o m m o n sense', though, is an indeterminate term which imports public policy issues which are considered in Chapter Eight. Irrespective of the actual test used by the court to determine the causal source of an injury, the court will not forsake the contextual circumstances. "Questions of causation are not answered in a legal vacuum. Rather, they are answered in the legal framework in which they arise".26 Lord Hoffman put the idea of a legal framework into perspective: In answering questions of causation for the purposes of holding someone responsible, both the law and c o m m o n sense normally attach great significance to deliberate human acts and extraordinary natural events. A factory owner carelessly leaves a drum containing highly inflammable vapour in a place where it could easily be accidentally ignited. If a workman, thinking i is only an empty t drum, throws in a cigarette butt and causes an explosion, one would have no difficulty in saying that the negligence of the owner caused the explosion,. O n the other hand, if the workman, knowing exactly what the drum contains, lights a match and ignites it, one would have equally little difficulty in saying that he had caused the explosion and that the carelessness of the o wner had merely provided him with an occasion for what he did. O ne would probably say the same if the drum was struck by lightning. In both cases one would say that although the vapour-filled drum was a necessary condition for the explosion to happen, it was not caused by the owner's 22 (1954) 91 C.L.R. 2 68 at 2 76 also cited in the judgment of M c H u g h J. in Chappel v Hart [1998] H C A 55 (2 September 1998), p. 5. 23 (1991)171C.L.R.506at509. 24 [1998] H C A 55. 25 Lord Salmon and Lord Wilberforce in Alphacell Ltd. v Woodward [1972] A .C. 8 24 at 847; Empress Car Company (Abertillery) Ltd. v National Rivers Authority 5 February 1998, H ouse of Lords at p. 5. 26 Chappel v Hart [ 1998] H C A 55 per Gaudron J. 202 negligence. O n e might add by way of fur...
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