Analysis Of The Ipp Report

Despite, the Ipp Report providing people with a better understanding of the Act, some of the recommendations frustrate what has been said in case law. Recent High Court decisions have been leaning towards an increasingly strict application of the “but for” test. “The plaintiff must provide direct evidence establishing that, on the balance of probabilities, the harm would not have occurred “but” for the defendant’s negligence”. The Ipp report panel made no recommendations to overturn the ‘but for’ test in fact it believes that it is a “necessary condition”. Clearly, the “but for” approach plays an important role as a “threshold” test, but it should not be applied as the only test for factual causation, because it sometimes yields unacceptable results or results that do not accord with common sense. Unfortunately, the Ipp report does not mention this. The report notes that ‘scope of liability’ can also be referred to as ‘remoteness of damage’, ‘foreseeability’ and others. However, these terms were included despite it being said in Chapman v Hearse that, ‘reasonable foreseeability’ is a test of the limits of liability not of causation. Furthermore, the Ipp report does not once refer to Wagon Mound No 1 , this is an important case because it establishes that “reasonable foreseeability was laid down for the common law world as test for remoteness of damage”. The panel of the Report also says the following, “it is in the context of the second element — namely scope of liability for consequences — that the statement that causation is a matter of common sense is most often made.” According to March v E & M Stramare Pty Ltd (March), a case on negligent driving, “the common sense test was seen as a test of factual causation only, th...

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...judgments (though not necessarily in the context of causation) placed greater emphasis on two themes. The first is the notion of personal responsibility. The other is the desirability for negligence law to cohere with other areas of law. Injecting these principles into causation would make this element more comprehensible and predictable. More specifically, it would limit the scope of liability in negligence”.

Causation is “one of the most esoteric and poorly defined legal principles”; it leads to a large degree of uncertainty. Although, the recommendations in the Ipp Report provide a sense of relief, their suggestions counteract some of the things that justice’s said in past judgments. The best approach to take when defining causation and its terms is to firstly look at the Act, then refer to extrinsic material (Ipp Report) and lastly to back up with case law.