Barrington, Jonathan --- "The Law of Intervening Causation" [2010] UTasLawRw 4; (2010) 29(1) University of Tasmania Law Review 80

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Book Reviews

The Law of Intervening Causation

Douglas Hodgson

Ashgate, England, 2008, (hardcover), pp 273, ISBN 978 0 7546 7766 8, $114.95

The Law of Intervening Causation by Douglas Hodgson of the University of Western Australia is a valuable contribution to understanding the modern application of the tort law maxim novus actus interveniens in Australian law.

This monograph is a comprehensive guide to the law of intervening causation – the law that governs whether, in light of subsequent events following a negligent act of the defendant, the defendant should be held liable for all that follows his or her negligent conduct or whether the causal link has been severed. In Part I the author introduces the reader to the topic and its judicial development. In Part II he outlines the legal tests that apply. Part III is devoted to discussion of the specific contexts in which intervening causation is significant. The author concludes in Part IV by examining the modern influence of the concepts of contributory negligence and remoteness of damage on novus actus interveniens.

Hodgson suggests in Part I that the maxim novus actus interveniens has a ‘definite meaning’ but is prone to ‘confusion’ over which legal tests apply and in which circumstances. He proposes a typology under which intervening events comprise: (a) the conduct of the plaintiff; (b) the act (or omission) by a third party; and (c) a natural event or coincidence independent of human agency. The author also briefly reviews the evolution of the maxim from the 1700s onwards covering celebrated cases including the case of an explosive squib wreaking havoc in a market place;^[1] a spring-loaded gun maiming an innocent third party;^[2] and death by septicaemia following a workplace injury to a toe.^[3] Through these precedents Hodgson reveals the sources of the modern legal tests for intervening causation.

In Part II the author outlines in detail each of the major legal tests for intervening causation: reasonable foreseeability; unreasonableness and abnormality; voluntary and deliberate human action; probability; and scope of risk. This part is particularly useful to students and practitioners alike – chiefly through the way Hodgson looks at each jurisdiction’s perspective of the individual tests over time, and how different conclusions have been reached among the jurisdictions as to a test’s utility. The development of the tests in Australia, Canada, New Zealand, the United Kingdom and the United States are given particular attention revealing the extent to which the legal principles in each jurisdiction either complement or contrast with those of the other jurisdictions. This approach allows the reader to better understand the scope of each legal test within their jurisdiction, as well as potential alternative approaches and arguments in future circumstances, based on the various approaches to determining intervening causation cases in other jurisdictions.

Part III covers a range of situations where intervening causation is important in negligence cases. Contexts covered comprise: intervening negligent acts and omissions; extraordinary natural phenomena, coincidences and animals; maritime incidents; suicide cases; professional malpractice; rescue of persons and property; children; escaping from danger and inconvenience; negligence causing susceptibility to later harm; and other miscellaneous operative contexts. The format allows the reader to pinpoint relevant contexts quickly, although Hodgson emphasises the need for legal practitioners to consider the unique circumstances of the instant case.

Part IV concludes the monograph. It outlines how intervening causation has been influenced by modern developments in contributory negligence, as well as remoteness of damage. Hodgson returns to his initial premise that although intervening causation has a definite meaning exactly which test will apply will only become apparent once the circumstances of the instant case are resolved. Hodgson’s conclusion provides some general principles and propositions and affirms the views of Lord Wright on what is needed to substantiate an argument for intervening causation:

It must always be shown that there is something which I will call ultraneous, something unwarrantable, a new cause coming in disturbing the sequence of events, something that can be described as either unreasonable or extraneous or extrinsic. I doubt very much whether the law can be stated more precisely than that.^[4]

The Law of Intervening Causation will prove worthwhile reading for a range of readers. Hodgson writes in a clear and precise style and provides abundant links to key precedents in Australia, Canada, New Zealand, the United Kingdom and the United States. The monograph will be particularly attractive to readers seeking novel arguments in particular cases and those wishing to explore the boundaries of existing legal principles governing the law of intervening causation.

Jonathon HS Barrington^[∗]

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^[1] Scott v Shepherd (1773) 3 W B1 892.

^[2] Bird v Holbrook [1828] EngR 580; (1828) 4 Bing 628.

^[3] Dunham v Clare [1896] UKLawRpKQB 194; [1897] 1 QB 240.

^[4] Lord v Pacific Steam Navigation Co Ltd (‘The Oropesa’) [1943] 1 All ER 211, 213.

^[∗] University of Tasmania law student, 2010, MBA, Grad Dip, BSc, member of Board of Editors for the University of Tasmania Law Review (2008 - 2011).