Henry Cooney, ‘Causation and Contributory Negligence: The Use and Misuse of Causal Concepts in Cases of Misleading Conduct’

The nature of liability for loss caused by misleading conduct has changed in recent years. A field previously dominated by tort, the last few decades have seen the emergence of statutory causes of action created by legislative schemes proscribing a variety of forms of misleading conduct. In both tort and in cases of statutory misleading conduct, however, a defendant’s liability is sometimes reduced when the plaintiff has been contributorily negligent. Questions of causation are core to the apportionment of liability in these circumstances, as the defendant’s liability can only be reduced if the plaintiff’s carelessness was a cause of the plaintiff’s loss. As this article will explain, however, despite being the ‘bread-and-butter’ work of common law courts there is confusion over the role of causal concepts when liability is apportioned for loss caused by misleading conduct.

This article examines the nature of the enquiry into whether the plaintiff’s carelessness caused the plaintiff’s loss, and argues that the enquiry involves consideration of whether the plaintiff’s carelessness contributed in any way to the plaintiff’s loss. The enquiry should not be viewed as involving either the ‘but for’ or ‘common sense’ tests of causation. Furthermore, it is argued that this enquiry is analytically distinct from either (1) the enquiry into whether the plaintiff’s loss was within the ‘scope of the risk’ created by the plaintiff’s carelessness, or (2) the enquiry into how liability should be apportioned between plaintiff and defendant if the plaintiff’s carelessness contributed to the plaintiff’s loss. These latter enquiries are enquiries going to the defendant’s scope of liability. They are not enquiries concerned with causation. In particular, the enquiry into the appropriate reduction in the plaintiff’s recovery does not involve questions of ‘causal potency’. This concept, though apparently embedded within the doctrine of contributory negligence, is unsatisfactory in theory and practice.

Cooney, Henry, Causation and Contributory Negligence: The Use and Misuse of Causal Concepts in Cases of Misleading Conduct (November 18, 2021). University of Western Australia Law Review, 49(1), forthcoming 2022.

First posted 2021-11-30 15:40:03

Leave a Reply