¹ See, eg, Winn v Posades, 913 A 2d 407, 411 (Conn, 2007).

² See, eg, Harrison v Binnion, 214 P 3d 631, 638 (Idaho, 2009).

³ See, eg, Dan Dobbs, The Law of Torts (2000) 416: ‘the substantial factor test is not so much a test as an incantation'.

⁴ See Jane, Stapleton, ‘Cause-in-Fact and the Scope of Liability for Consequences’ (2003) 119 Law Quarterly Review 388Google Scholar, 394–5 (hereafter ‘Cause-in-Fact’).

⁵ See, eg, Anderson v Minneapolis, St Paul & Sault Ste Marie Railway Co, 146 Minn 430 (Minn, 1920) a case involving the merging of two fires where the term was first coined by a US court.

⁶ See Jane, Stapleton, ‘The Two Explosive Proof-of-Causation Doctrines Central to Asbestos Claims’ (2009) 74 Brooklyn Law Review 1011Google Scholar (hereafter ‘The Two Explosive Proof-of-Causation Doctrines’).

⁷ See Jane, Stapleton, ‘Legal Cause: Cause-in-Fact and the Scope of Liability for Consequences’ (2001) 54 Vanderbilt Law Review 941Google Scholar.

⁸ A typical example is Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568, 581 [41] (McHugh J). Appeal to the idea of ‘common sense’ causation is extremely rare in the US and is widely deprecated in the UK, see, eg, Stone & Rolls Ltd (in liq) v Moore Stephens (a firm) [2009] 3 WLR 455, 460 [5] (Lord Phillips of Worth Matravers).

⁹ (1999) 197 CLR 269, 281 [36], quoting Betts v Whittingslowe (1945) 71 CLR 637, 649 (Dixon J) ('Betts’).

¹⁰ (1945) 71 CLR 637, 649 (Dixon J).

¹¹ (2008) 245 ALR 653. See also Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 and Commissioner of Main Roads v Jones (2005) 215 ALR 418, 437 [80] (Callinan J).

¹² Betts (1945) 71 CLR 637, 649.

¹³ JusticeKeith, Mason, ‘Fault, Causation and Responsibility: Is tort law just an instrument of corrective justice?’ (2000) 19 Australian Bar Review 201Google Scholar, 210.

¹⁴ H L A, Hart and Tony, Honoré, Causation in the Law (2nd ed, 1985) 11Google Scholar.

¹⁵ See Jane, Stapleton, ‘Choosing What We Mean by “Causation” in the Law’ (2008) 73 Missouri Law Review 433Google Scholar, 458–65 (hereafter ‘Choosing’).

¹⁶ Hart and Honoré, above n 14, 130–1.

¹⁷ For example sometimes there is liability even though lightning has intervened and sometimes there is no liability: we need to delve into the reasons why this is so, see Stapleton, ‘Choosing', above n 15, 461–4.

¹⁸ See, eg, Bennett v Minister of Community Welfare (1993) 176 CLR 408, 429–30 [13]; Nominal Defendant v Gardikiotis (1996) 186 CLR 49, 55. On the general point see Stapleton, ‘Choosing', above n 15, 463–4; Jane, Stapleton, ‘Occam's Razor Reveals an Orthodox Basis for Chester v Afshar’ (2006) 122 Law Quarterly Review 426, 431–6Google Scholar.

¹⁹ Hart and Honoré, above n 14, xxxiii.

²⁰ Indeed, Hart and Honoré even characterised their truncation notions as not just causal but ‘factual': Hart and Honoré, above n 14, lii, 91.

²¹ See Stapleton, ‘Cause-in-Fact', above n 4.

²² Commonwealth of Australia, Review of the Law of Negligence: Final Report (2002) 109 (footnote 6); 117-8Google Scholar (Recommendation 29).

²³ Civil Liability Act 2003 (Qld) s 11; Civil Liability Act 2002 (NSW) s 5D; Wrongs Act 1958 (Vic) s 51; Civil Law (Wrongs) Act 2002 (ACT) s 45; Civil Liability Act 2002 (Tas) s 13; Civil Liability Act 1936 (SA) s 34; Civil Liability Act 2002 (WA) s 5C. Neither the Northern Territory nor the Commonwealth has implemented any provision relating to ‘causation'.

²⁴ Civil Liability Act 2002 (WA) s 5C(1).

²⁵ Civil Liability Act 2002 (NSW) s 5D(1); Wrongs Act 1958 (Vic) s 51(1); Civil Law (Wrongs) Act 2002 (ACT) s 45(1); Civil Liability Act 1936 (SA) s 34(1).

²⁶ Civil Liability Act 2003 (Qld) s 11(1); Civil Liability Act 2002 (Tas) s 13(1).

²⁷ Bennett v Minister of Community Welfare (1993) 176 CLR 408, 412-3 (Mason CJ, Deane and Toohey JJ); Roads and Traffic Authority v Royal (2008) 245 ALR 653, 674 [81] (Kirby J).

²⁸ All liabilities, including those arising under statute, are limited. A statute may expressly limit the type of consequence that comes within its scope: see eg, Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568. Or such limits may be generated implicitly by the clear purpose of the statute: eg, Gorris v Scott (1874) 9 LR Exch 125. More often these must be divined by the court from more general interpretations of the purpose of the rule in the light of the general law.

²⁹ The situation is more complex where the duty is one of affirmative action or the form of actionable damage in issue is nervous shock or pure economic loss. Here there is a normative ‘envelope’ confining the obligation to certain types of risk: see Jane, Stapleton, ‘The Risk Architecture of the Restatement (Third) of Torts’ (2009) 44 Wake Forest Law Review 1309Google Scholar, 1322, 1325–6 and 1328.

³⁰ See Jane, Stapleton, ‘Legal Cause: Cause-in-Fact and the Scope of Liability for Consequences’ (2001) 54 Vanderbilt Law Review 941Google Scholar, 996 (footnote 142).

³¹ [1997] AC 191.

³² (1998) 195 CLR 232. See generally Stapleton, ‘Occam's Razor Reveals an Orthodox Basis for Chester v Afshar', above n 18, 447–8. But even if it is completely uncontroversial that the outcome was ‘the very thing’ the risk of which had been a reason why the defendant's conduct was judged to be a breach, this does not relieve the plaintiff from proving factual cause: see Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 442 [51].

³³ Gorris v Scott (1874) 9 LR Exch 125.

³⁴ Jane, Stapleton, ‘Negligent Valuers and Falls in the Property Market’ (1997) 113 Law Quarterly Review 1, 1–7Google Scholar; Stapleton, ‘Cause-in-Fact', above n 4, 390–1.

³⁵ Leonard, Hoffmann, ‘Causation’ (2005) 121 Law Quarterly Review 592, 596Google Scholar.

³⁶ ‘[T]he task of Dr Chappel was to demonstrate some good reason for denying to Mrs Hart recovery in respect of injuries which she would not have sustained at his hands but for his failure adequately to advise her': Chappel v Hart (1998) 195 CLR 232, 257 [69] (Gummow J).

³⁷ (1991) 171 CLR 506.

³⁸ An illustration of multiple but-for factors that are omissions was given in Bennett v Minister of Community Welfare (1993) 176 CLR 408, 429 (McHugh J).

³⁹ Commonwealth of Australia, above n 22, 109.

⁴⁰ March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, 516 (Mason CJ); Chappel v Hart (1998) 195 CLR 232, 282–3 [116].

⁴¹ Compare Elayoubi v Zipser [2008] NSWCA 335. But the point has divided academic opinion: see Stapleton, ‘Choosing', above n 15, 477–9.

⁴² Stapleton, ‘Choosing', above n 15, 443. The concept of a causal contribution must be carefully distinguished from the notion of ‘damage'. Suppose three votes had not been in breach of a duty: then a defendant's vote in a breach of duty would be a factual cause of the expulsion; but would not have caused ‘damage’ to X (ie to the prospects to which X was legally entitled) because had X suffered no breaches of duty he would still have been expelled.

⁴³ American Law Institute, Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010) vol 1, 380–1 (s 27, Illustration 3) which designates the relation of each actor's negligence to the car's destruction as being a ‘factual cause'.

⁴⁴ (2001) 206 CLR 459.

⁴⁵ Ibid 493 [107]. See also Medlin v State Government Insurance Commission (1995) 182 CLR 1 where the plaintiff's injuries from the tort were a ‘contributing cause of his decision to retire’ (at 8).

⁴⁶ Contrast Roads and Traffic Authority v Royal (2008) 245 ALR 653, 675 [84] (Kirby J) that ‘the determination of causation-in-fact is not one that can be made without recourse to broader considerations'.

⁴⁷ Commonwealth of Australia, above n 22, 118 (Recommendation 29).

⁴⁸ (2008) 245 ALR 653.

⁴⁹ Ibid 660-1 [26].

⁵⁰ Ibid 659 [18].

⁵¹ See also Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, 452 [45] per Toohey and Gummow JJ:

if the appellant established a breach of the duty of care cast upon the respondent, by reason of the failure to provide a fence a finding of causation was almost inevitable. If negligence lay in the failure to provide a warning sign, causation would remain a live issue.

⁵² Commonwealth of Australia, above n 22, 111 (paragraph 7.34).

⁵³ See, eg, Seltsam v McGuiness (2000) 49 NSWLR 262 (is inhalation of asbestos capable of contributing to the contraction of renal cell carcinoma?).

⁵⁴ See Stapleton, ‘Choosing', above n 15, 444, 459 and 471ff.

⁵⁵ See, eg, Naxakis v Western General Hospital (1998) 197 CLR 269; Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1.

⁵⁶ These issues must be distinguished from the contingency that another factor which did not operate might have done so and caused the phenomenon in issue (such as an injury): see Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.

⁵⁷ (2005) 215 ALR 418.

⁵⁸ Civil Liability Act 2003 (Qld) s 11(3)(a); Civil Liability Act 2002 (NSW) s 5D(3)(a); Wrongs Act 1958 (Vic) s 51(3); Civil Liability Act 2002 (Tas) s 13(3)(a); Civil Liability Act 2002 (WA) s 5C(3)(a).

⁵⁹ (2009) 239 CLR 420.

⁶⁰ Ibid 441 [49].

⁶¹ Of course many evidentiary gaps can be bridged by legitimate inference as in TNT Management Ltd v Brooks (1979) 23 ALR 345.

⁶² See, eg, West v Government Insurance Office of NSW (1981) 148 CLR 62.

⁶³ Civil Liability Act 2003 (Qld) s 11(3)(b); Civil Liability Act 2002 (NSW) s 5D(3)(b); Civil Liability Act 2002 (Tas) s 13(3)(b); Civil Liability Act 2002 (WA) s 5C(3)(b).

⁶⁴ [1998] AC 232. For an especially insightful discussion see Michael, Jones, Medical Negligence (4th ed, 2008) 445–6Google Scholar.

⁶⁵ David, G Owen, Products Liability Law (2nd ed, 2008) 797–801Google Scholar.

⁶⁶ See Sindell v Abbott Labs, 607 P2d 924, 937 (Cal 1980); Brown v Superior Court, 751 P2d 470, 485-7 (Cal 1988).

⁶⁷ See Jolly v Eli Lilly & Co, 751 P2d 923, 930 (Cal 1988). In New York the doctrine cannot be characterised this way because there it is no answer to the claim for the defendant to prove the relevant unit could not have been one he produced: see Hymowitz v Eli Lilly, Co, 539 NE2d 1069, 1078 (NY 1989).

⁶⁸ 199 P2d 1 (Cal 1948).

⁶⁹ The argument that in Watts v Rake (1960) 108 CLR 158 Dixon CJ had recognised an equivalent special rule shifting the legal burden on to the defendant ‘to do the disentangling’ was rejected in Purkess v Crittenden (1965) 114 CLR 164. See Harold, Luntz, Assessment of Damages for Personal Injury and Death: General Principles (2006) 152–5Google Scholar.

⁷⁰ See Stapleton, ‘The Two Explosive Proof-of-Causation Doctrines', above n 6. Both the ‘indivisibility-of-injury’ rule and the ‘alternative liability’ rule have been restated in s 28 of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010). The former had been covered by s 433B(2) of the Second Restatement while the latter had been covered by s 433B(3).

⁷¹ [1956] AC 613.

⁷² Jane, Stapleton, ‘Lords a'leaping Evidentiary Gaps’ (2002) 10 Torts Law Journal 276Google Scholar, 283.

⁷³ Such as Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] 1 QB 405 (deafness) and Holtby v Brigham & Cowan (Hull) Ltd (2000) 3 All ER 421, 428 (asbestosis).

⁷⁴ Wilsher v Essex Area Health Authority [1988] AC 1074, 1090 per Lord Bridge in a doomed attempt to fit McGhee v National Coal Board [1973] 1 WLR 1 into orthodox principles.

⁷⁵ [2003] 1 AC 32. See, eg, Lord Bingham at 57–8 [22].

⁷⁶ See Stapleton, ‘The Two Explosive Proof-of-Causation Doctrines', above n 6. Contrast Barker v Corus UK Ltd [2006] 2 AC 572 with Rutherford v Owens-Illinois Inc, 941 P2d 1203 (Cal, 1997).

⁷⁷ Note the problematic characterisation by Lord Hoffmann in Barker v Corus UK Ltd [2006] 2 AC 572 on which see Stapleton, ‘Occam's Razor Reveals an Orthodox Basis for Chester v Afshar', above n 18, 448 fn 77.

⁷⁸ See Jane, Stapleton, ‘Factual Causation and Asbestos Cancers’ (2010) 126 Law Quarterly Review 351Google Scholar (a note on Amaca Pty Ltd v Ellis (2010) 240 CLR 111).

⁷⁹ Commonwealth of Australia, above n 22, 118 (Recommendation 29(d)).

⁸⁰ Civil Law (Wrongs) Act 2002 (ACT) s 45(2); Civil Liability Act 1936 (SA) s 34(2).

⁸¹ [1973] 1 WLR 1.

⁸² Jane, Stapleton, ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’ in Peter, Cane (ed), Centenary Essays for the High Court of Australia (2004) 242, 244Google Scholar: A ‘vital secret of our constitutional arrangements is the close union of the judicial and legislative powers in the court of ultimate appeal and that our common law legal systems embrace a form of the separation of powers doctrine that accommodates this substantial law-making capacity.’ 83 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 443 [54].

⁸⁴ Derived from Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co [1961] AC 388 ('Wagon Mound (No 1) Case’) and Hughes v Lord Advocate [1963] AC 837.

⁸⁵ Stapleton, ‘Cause-in-Fact', above n 4, 401, 412–17. Travel Compensation Fund v Tambree (2005) 224 CLR 627 runs counter to the usual judgment that if, but for the breach of an obligation of care, the plaintiff would have suffered an equivalent loss in a different transaction, it lies outside the appropriate scope of liability.

⁸⁶ Stapleton, ‘Occam's Razor Reveals an Orthodox Basis for Chester v Afshar', above n 18, 438ff.

⁸⁷ Stapleton, ‘The Risk Architecture of the Restatement (Third) of Torts', above n 29, 1324-5.

⁸⁸ See, eg, Homac Co v Sun Oil Co, 180 NE 172 (NY 1932).

⁸⁹ Stapleton, ‘Cause-in-Fact', above n 4, 420–1.