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Let us develop an understanding of the basic theory of causation

Describe about the framework of causation before and after the implementation of “The IPP Report”.

Even before stepping into the study, we would like to share a general notion about the ipp recommendations. Most of the people in Australian Law fraternity have this strong opinion that Ipp has the power to expand the reach of the law a great deal. It has the power to cover many untouched areas of natural flow of justice which were under dark allies because “common Wisdom” was calling the shots” inside the courts. Experts were repeatedly asking for a “refined terminology and polished framework.” With the arrival of Ipp they introduced this framework into the system.

 (N, 2012)

Let's fix it with the help of a simple "hit and run" case, culprit A aims a gun on B, shots a fire, B gets injured. We can simply say that A's act directly causes injury on B. This is the simple conclusion about Causation. We are not talking about the intentions or conflicts, we are not telling you that A is an army men and B is a militant. We are simply defining a straight line to connect causative action and impact. We can also say that we employed our common sense into it. Use of this word common sense is very important here. Until the introduction of Ipp recommendations, the process of the Factual process was dependent on common sense or "Street Smart Wisdom" if we can use this term loosely. The act of drawing a vertical between the action and its product was based on the discretion of the individual sitting in the chair of judgment. The introduction of Ipp emerged as a game changer in this direction, how it happened this we will discuss in a different part of the same report.(Meara, 2005)

Imagine a different case, Both A and B are walking on the road, a throws a banana peel on the road. It is a civil negligence because it should be thrown into a dustbin. Unfortunately, the B slips over it gets his leg fractured. A van moving from behind cannot control it and runs over B and he dies. Now what should be the line of causation? A can or cannot be held responsible for the death of B? A is directly not connected with the death of B, it is C ( Van driver) who delivered the final blow/primary blow.

Let us move onto a complex case of causation

The answer to this question is dependent on the argument of the causation. What is the role of C (Van driver) in the case how can we deal with his factual causation in the matter? We can very clearly see the presence of some verticals. Again, we are not talking about things like intention and others. We are simply trying to connect an action with its positive or negative fruit.

It was the date of 30 September 2002 when statutory provisions to supplement common law negligence principles were implemented in relation with Causation and Remoteness of damages. On first sight, it added a two-pronged deciphering approach to causation. It means it was a kind of double advantage for the claimant who was bearing the losses, first, it increased the scope of liability on the defendant and second it added new legal tentacles for fixing "factual causation" to bring in some remote elements in the legal framework.   (Cane P, 2002)

The periphery of “But for” test reached to new high with the implementation of ipp Recommendations. Prior to that, it was very difficult for courts to fix the factual causation. In current terminology, we can say it was very difficult to figure out the roles of various “fruits before the accessories” and “fruits after the accessories.” In terms that are more common, we can also state that it was difficult for anyone to fix the roles of people who were providing assistance directly or indirectly into the incidents. If we can put a different terminology to it then we can say that ipp redefined the roles of catalysts of the events as well.

After the implementation of IPP another tangent that was connected to “duty of care,” leading to negligence also registered a sea change in the definitions of role fixation considerably. Here we would like to mention a landmark judgment passed by Australian high court in this much-coveted case of Wallece V/S Kam, it was dealing with a medical negligence and "failure to  warn" against a severe medical condition was termed as the factual causation because absence of a medical negligence could have saved the day for the claimant. Now, this judgment of "failure to warn" supports the spirits of ipp recommendations and this judgment has certainly opened a new door for so many other lawsuits of similar nature to be entertained in the courts.

(Rogers, 2014)

If we study the story of story of factual causation under the purview of law then we find that it was more or the less dependent on common sense, there are many cases where the process factual causation took place based on the common wisdom of the people, Ipp report in 2002, changed it completely for Australian legal system. Terms like Proof of Duty and breach to define negligence took a new back end support. The definition of the “tort of negligence” adopted a new and pervasive definition.

2002 a landmark year in the history of the 'Legal Framework of Causation'

Prior to the 2002 scenario, the law stated that…

That the negligence was a necessary condition of the occurrence of the harm (“factual causation”), and

That it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (“scope of liability”).

However in 2002 things got twisted and a new definition came in according to it

‘factual causation’ ... concerns the factual issue of whether the negligence played a part in bringing about the harm; and

‘scope of liability’ ... concerns the normative issue of the appropriate scope of the negligent person’s liability for the harm, once it has been established that the negligence was a factual cause of the harm. ‘Scope of liability’ covers issues, other than factual causation, referred to in terms such as ‘legal cause’, ‘real and effective cause’, ‘commonsense causation’, ‘foreseeability’ and ‘remoteness of damage’.

We can figure out the difference quite clearly here, in the previous definition of factual causation, it was a “necessary condition,” now this word necessary condition was limiting the equation in the favor of defendant. It means the bearing was more on direct actions and direct consequences. Let us see the case that we have raised in the beginning of this study, in the previous framework of causation. Van driver C is a culprit. Van’s direct action brought in the death of B. Van’s action was necessary action behind the blow; According to the first definition, Negligence of A is not a necessary condition behind the accident.

After the arrival of Ipp things have changed drastically, a new definition of factual causation says “Negligence played a part in bringing about the harm” under this definition A can also be held as a guilty party, the reason is quite simple, his negligence make B fall on the road. It played a part in the main act that finally led him to a fatal blow. Regarding the act of Van driver certain other factors like Fitness of breaks of the vehicle, speed limits laws on the road can also help a person in fixing the responsibility for the accident. The introduction of word “part” gave it a new lease of added dimensions. Now we can see the whole incident in two parts or many more parts and practice the exercise of causation on each part individually.

The definition of the scope of liability also got a new lease of life. Now they have added terms like "legal cause", real and effective cause, foreseeability , common sense causation and remoteness of the damage. How scope of liability changed after Ipp, let us move back to the case that we have in our hands. In the first theory, driver of the Van C is liable for the safety of pedestrians. He faltered and it is a mistake. It is the introduction of many other clauses that made a change here and brought claimants on a point of advantage. (Welford, 30 July 2002,)

Basic theories of Causation and the Impact of IPP

Now let us discuss the case in hand under the purview of “Scope of liability.” B slipped on the peel of a banana, it caused him death, since A left that peel on the road he can be considered as a fruit of factual causation, now here A can claim that he left the banana peel on the road because there were no dustbins in the sight. This statement can bring in “duty of care” department concerned with the region under the scope of liability courts can take a cognizance on it and make them a party in the quest. It means that even A is a receiving party because he was seeking for a dustbin. It is true that the principle of causation and scope for liability were dependent on common sense but they were contrived, this contrived nature of the laws came into forefront when we compare them with the current set of laws that were implemented after 2002.

If weather forecast department fails in predicting a week full of heavy rains and this rain causes floods then current set of post ipp laws can bring them under the book. In the past, we were not able to put forward these things it was happening because the limiting principle of the common law that states…

A limiting principle of the common law is that the scope of liability in negligence does not extend beyond liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid.…

Rains can cause floods, now this condition looks like a farfetched condition, in the previous versions of civil laws, there were no means to bring certain parties under the book. However, with the current extended definition of the scope of liability things have changed, now weather department can be brought under the book under the clause of foreseeability attached to the scope of liability. (Meara, 2005)

The changes in the definition of the scope of liability gave rise to some landmark decision. The case of Wallace V/S Kam saw the emergence of a new dictum, Honorable high court in its judgment mentioned that “the conception of a duty to warn was not intended to protect a person's right to choose, or to protect a person from exposure to all unacceptable risks. Rather, the policy is to protect a person from a particular injury or injuries, the risk of which is unacceptable to them.” The negligent party was blamed and brought under the book because he did not follow his duty to warn, it is a landmark judgment not only in the field of medicines but also in the field of consumer forum cases as well.

It was an advantage point that promoted it from common sense to legal sense

(Wallace Vs Kam, 2014)

This simple judgment can become a revolution in future; it has a nature of tort attached to it, now imagine the same principle of "to warn' attached to all the emergency medicines. It means now they cannot leave any stone unturned while describing the side effects and other conditions related to various medicines and treatments. This simple judgment can also be comprehended in the field of product liability exercises as well. Just like medicines and medical services many other products also carries the tag of warning signs etc.

The law they say follows the approach of a waterfall, just like any other natural force it flows with the time and finds a way for itself under the pretext of change in the society and advancement methods employed by the criminal. For instance, we can take the example of an "abetment to suicide" charge. It can be a culpable homicide if you are dealing with a shrewd and cruel criminal.

It can also be a circumstantial or spur of the moment thing as well. It all depends on the discretion of the person sitting on the chair. The introduction of IPP certainly took the process of causation and liability fixing to a new high, it introduced a new terminology into the process and now this terminology is gradually finding its way in the cases and conditions. The law of negligence also hovers on the same line; the difference of “negligence or criminal negligence” has a very thin line attached to it. With the arrival of this new system and with an extended definition supporting the cause and liabilities, things can become much easier to explain.

As it happens in the hardcore criminal laws, the framework allows us to explain a problem in parts and fix a framework on each part, now it is the same that we can expect in the case of causation process in various other areas, especially in the area of negligence.

On the downside we can also say that certain criminals can take undue advantage of this sophisticated new framework, they can lengthen up the court processes by introducing more suspects, they can try to share the burden with some indirect parties.

We can never deny the fact that every sophisticated set of law is a vulnerable set of law as well. Currently, these changes are in its nascent stages because we do not have many judgments to talk about. Some lawyers may say that with the arrival of Ipp simple laws lost their simplicity and interpretation of these laws became a little difficult. Even then, the thing cannot be denied it is an introduction of an advanced mechanism that has already knocked the doors of court and fruits of this new system are awaited.

References:

Cane P, S. D. (2002). Report of the review of the Law of Negligence . Sydney .

Meara, M. O. (2005). Causation, Remoteness and equitable compensations . Australian Bar Review 51.

N, B. (2012). A consideration of "Scope of liability within the restatements tort law review.

Rogers, L. a. (2014). Wallce V/s Kam Case history and report . Australia .

Wallace Vs Kam (Queensland 2014).

Welford, H. R. (30 July 2002,). Personal Injuries Proceedings Amendment bill 2002. The attorney general and minister for Justice , (pp. 2292-2293). Queensland .

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