March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506
Tort; Negligence; causation of harm; single and combined causes of harm; the 'but for' test.
Facts: One morning, while it was still dark, Stramare parked a large truck in the middle of a six-lane highway for the purpose of loading it with large boxes of vegetables. The street was reasonably well lit and the truck's parking and hazard lights were on. Nevertheless, another user of the road, March, collided with the parked truck. At the time, March was driving under the influence of alcohol, which substantially affected his vision, co-ordination and judgment. March sustained personal injuries in the collision and sued Stramare.
Issue: Whose negligence had caused the harm sustained by March?
Decision: On appeal, the High Court found that, in the circumstances, both March and Stramare had been negligent and that the negligence of both parties had contributed to March's injuries.
Reason: The court concluded that 30% of March's injuries were caused by Stramare's negligence and 70% by his own. The court considered various aspects of causation.
Novus actus interveniens. Mason CJ said (at [23], [26]):
"[T]he '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 which would otherwise have resulted from an earlier wrongful act. ... In such a situation, A's act [parking the truck] is not a cause of that consequence, though it was an essential condition of it. No doubt the explanation is that the voluntary intervention of B [driving while drunk] is, in the ultimate analysis, the true cause. ...
It has been said that the fact that the intervening action was foreseeable does not mean that the negligent defendant is liable for damage which results from the intervening action... But it is otherwise if the intervening action was in the ordinary course of things the very kind of thing likely to happen as a result of the defendant's negligence."
Causation and the 'but for' test. Mason CJ said (at [17], [20], [22]):
"The common law tradition is that what was the cause of a particular occurrence is a question of fact which 'must be determined by applying common sense to the facts of each particular case'... That said, the 'but for' test, applied as a negative criterion of causation, has an important role to play in the resolution of the question [of causation in fact]...
"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 application of the test 'gives the result, contrary to common sense, that neither is a cause'... In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury... [T]he test ... yields unacceptable results... [which] must be tempered by the making of value judgments and the infusion of policy considerations."
Apportionment of liability. Mason CJ said (at [13], [16]):
"These days courts readily recognize that there are concurrent and successive causes of damage on the footing that liability will be apportioned as between the wrongdoers... [T]he law's recognition that concurrent or successive tortious acts may each amount to a cause of the injuries sustained by a plaintiff is reflected in the proposition that it is for the plaintiff to establish that his or her injuries are 'caused or materially contributed to' by the defendant's wrongful conduct. ... Generally speaking, that causal connexion is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent."