Date: Wed, 19 Sep 2007 22:20
From: Geoff McLay
Subject: Causation in the NZCA
I neglected to send you all Ambros. Personally I don't understand who won or lost. Cleary ACC thinks that it won but I not so sure.
The most important thing is that it is not a common law case at all. The really interesting thing about the case is not what they get wrong or right about common law causation, it seems to me, but whether they state the relationship between common law and a statutory regime that depends on "causation" to make largely indefensible distinctions between compensable accidents and non -compensable illness. Does any one have any thoughts about this ... I would be very grateful as I M writing a paper on the subject for the 40th anniversary of the Woodhouse report in December.
From: David Cheifetz
Sent: Wed 9/19/2007 14:30
To: 'Neil Foster'
Subject: RE: ODG: Causation in the NZCA
I agree. The NZCA had no obligation to NZ jurisprudence to do any review of Canadian jurisprudence, extensive or otherwise. And, in that sense it had no obligation to get whatever review it did right. On the other hand, you'd hope they'd feel some intellectual sense of pride in getting it right; or, at the least, not missing something obvious. So, we're left to wonder how they went as astray as they did, given that somebody had Lara's text on his or her desk.
The NZCA's view of Bonnington? I agree with you. The NZCA court was wrong about what their Lordships intended what they wrote to mean. I think I said much the same as you in Snark (at p. 86). I agree with what you say about the Commonwealth version of material contribution with this qualification. In my view, words such as trivial, main, substantial etc are meaningless to factual causation. Some candidate event is either a cause or it is not. The adjectives may have some significance to whatever consequences (if any) law will assign to the conclusion the event is a cause, but that's not a factual causation question.
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