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89 ALJ 20 (2015)
Unnecessary Caution

handle is hein.journals/aslnlwjunl89 and id is 56 raw text is: Unnecessary causation James Edelman* One of the most difficult, but ubiquitous, issues in the law is the question of causation. Whether in criminal law or in civil law a person is not generally thought to be responsible for outcomes that he or she has not caused. The question of causation should not be understood as one of fact or of law. It is a question of metaphysics. The approach that should be taken to the metaphysi- cal question is a counterfactual inquiry into whether the event which was the person's action or inaction made a difference to the outcome. In other words, whether but for the event the outcome would have happened anyway. Once causation is understood in this way then it is possible to see a considerable number of circumstances where persons are responsible without having caused an outcome. Attention can then be focused upon the reasons why the law allows responsibility where causation is unnecessary. INTRODUCTION This article is concerned with a fundamental common law question. This is the meaning of causation. It is very commonly said that causation is a question of fact. But this is misleading. Neither the causal rules, nor their application, is a question of fact. Both involve issues of metaphysics. The meaning of a causal rule requires us to ask the metaphysical question of what relationship is required before we can conclude that an outcome (O) is caused by an event (E). The approach of the judiciary has usually been to avoid answering this metaphysical question. In Timbu Kolian v The Queen (1968) 119 CLR 47 at 68-69, Windeyer J quoted from Sir Frederick Pollock to say that the lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause. The avoidance of the metaphysical question of the meaning of causation is one of the reasons for the rise of an approach to causation in Australia described as the common sense approach. The common sense approach is not a meaning of causation. It invites the judge or jury to reason by reference to unstated premises and to assert as common a conclusion that is often highly contested. This article seeks to provide the meaning of causation at common law. The basic thesis is that what is meant by causation is necessity. If the event was not necessary for the outcome then it made no difference to the outcome and did not cause the outcome. This is commonly known as the but for test. This is not a new thesis. For a time, the but for approach was the dominant meaning of causation at common law. One leading philosopher of causation has described but for causation as the cement of the universe.1 But perceived difficulties with its application led to it being abandoned in Australia. The signs are that the but for test may yet be re-adopted, as it should. There are significant benefits that can be achieved by the adoption of the but for test of causation. Instead of creating an overly broad approach to causation and saying that causation is a prerequisite of legal liability throughout both the law of torts and the law of crimes,2 a but for approach allows us to focus on the many instances where liability is imposed even though an event is unnecessary for the outcome. That is a conclusion which is always harder to justify than when liability depends on but for causation. THE THESIS OF THIS ARTICLE IN SUMMARY: BUT FOR CAUSATION The question of causation is what should be the rule for the required link between Event and Outcome. That answer is necessity. The most natural, and most common, description of cause is that E is a cause *Justice of the Supreme Court of Western Australia. Adjunct Professor, University of Western Australia and University of Queensland; Conjoint Professor, University of New South Wales. Mackie JL, The Cement of the Universe: A study of causation (1980). 2 Moore M, Causation and Responsibility (2009) p 20. 20 (2015) 89 ALJ 20

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