Date: Thu, 17 Nov 2005 13:40:18

From: Jason Neyers

Subject: High Court of Australia on causation and policy issues

Dear Colleagues:

It is amazing how different people can have such different perceptions of things. I would have thought that over the last ten years, the High Court has been the strongest appellate court in the Commonwealth on matters of private law (with the HL a distant second). I would rather have people write their own judgments when they disagree on matters of fundamental importance (like the role of policy in the law) than to sign on to some hodge-podge unanimous judgment. Although I agree with Robert that I wish that the HC judges who had very similar things to say (usually everyone except Kirby) would find a way to say them together more often.

Robert, I am also a bit surprised that you seem to like Kirby since I would have rated him the weakest member of the HC in regard to elucidating matters of private law in an intelligible and principled manner, concerns that you outline in almost all your contributions to the ODG. His judgments read like SCC judgments in that they say that everything is policy and yet they never take the policies fully seriously (i.e. apply them to their natural conclusions). Thus, I would be interested to know why you hold him in such high regard. Personally, I have always found the judgments of McHugh, Kirby and Glesson to be of a much higher quality in regard to the principled and intelligible application of the private law than those of Kirby.

What I found interesting about Neil's e-mail is that it seems there is still a lot of debate in Australia over causation whereas in Canada I would have thought that most would have agreed that there are questions of factual causation which are followed by questions of scope of liability (remoteness, legal cause) and that the two questions are largely separate.

Cheers,

----- Original Message -----
From: Robert Stevens
Date: Thursday, November 17, 2005 4:50 am
Subject: Re: ODG: High Court of Australia on causation and policy issues

I think this case tells us more about the High Court of Australia than anything very much about causation. The correct result was reached by all of them. The case was straightforward. Yet they still find something to fight over. Here, yet again, whether courts can look to 'policy' (which neither side defines) or 'principle' (which neither side defines).

Whatever one thinks of the current House of Lords, at least they don't behave like ferrets in a sack.

As it happens, I think Kirby, someone I admire, is wrong but I don't see why the decision could not have been unanimous and disposed of in a few paragraphs.

 

Robert Stevens

p.s. If you do read Kuwait Airways v Iraq, may I recommend reading Lord Hoffmann at paras 129 and 130 which is much sounder and more useful than all 105 paragraphs of Lord Nicholls.

--
Jason Neyers
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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