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March v Stramare (1991) 171 CLR 506

Updated: Feb 12, 2023

Deane, Gaudron, Mason C.J., McHugh JJ and Toohey

Torts - Negligence - Duty of care - Scope - Reasonably foreseeable - 'But for' test

Facts: The facts of the case concern a collision between the appellant and the respondent on 15th March 1989 at 1.00 AM. The front of the respondent's truck struck the back of the appellant's truck in the early hours of the morning whilst one of the vehicles was parked to collect various fruits and vegetables on Frome Street in Adelaide. The appellant sued to recover damages for personal injury. [2]

"The primary judge (Perry J.) found that the appellant was intoxicated at the time to such an extent that his ability to judge speed...and distance, his eye functions, his co-ordination and reaction times, and his vision while attending to the controls of the car were impaired, some substantially so.

The primary judge found that, although the parking and hazard lights of the truck were illuminated, the second respondent should have appreciated that the parked vehicle might, in some circumstances, constitute a danger to oncoming vehicles. Accordingly, his Honour found that the second respondent was negligent in parking the truck in the middle of Frome Street. His Honour went on to find the appellant guilty of contributory negligence in driving under the influence at speeds over 60 kilometres per hour. " [3]

Law: The Court distinguished concepts of causation and foreseeability in this case. The Court affirmed the decision in Chapman v Hearse (1961) 106 CLR 112 that "the term 'reasonably foreseeable' is not, in itself, a test of 'causation'; it marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act." This position was re-affirmed in the case of Mahony v. J. Kruschich (Demolitions) Pty. Ltd. (1985) 156 CLR 522 "A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either

because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens." [8]

But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone: see Chapman v Hearse (1961) 106 CLR 112. [8]

The more you read this case, you find out that the 'but for test states that 'but for' the tortfeasors reasonably foreseeable act or omission, would the plaintiff be in the same position as they were initially [paraphrased]. [8] However, one issue with the test includes an over-reliance on one act or omission contributing to the 'chain of causation.' Since there may be instances where there is more than one act or omission that results in negligence.

As such, the Court references the case of Roe v. Minister of Health (1954) 2 QB 66, where Lord Denning discussed favouritism for the 'scope of the risk' test.

"Starting with the proposition that a negligent person

should be liable, within reason, for the consequences of

his conduct, the extent of his liability is to be found by

asking the one question: Is the consequence fairly to be

regarded as within the risk created by the negligence? If

so, the negligent person is liable for it: but otherwise

not." [24] [emphasis added]

In closing, the Court, in this case, also discussed the 'duty of care.' It was determined that 'but for the breach of the duty which the defendants owed to the plaintiff in the present case, the damage he suffered would not have occurred. [Furthermore] when a defendant has a prevent the occurrence of damage...and the defendant's breach of duty was a cause of that damage, the damage will be...within the scope of the risk which the defendant was required to avoid unless the plaintiff sustained the damage intentionally/recklessly or unforeseeably. [27] [paraphrased and emphasis added].

Holding: Mason C.J. "...I do not accept that the "but for" (causa sine qua non) test ever was or now should become the exclusive test of causation in negligence cases." [1] The appeal was allowed with costs. [29]

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