#2309 - How Is Causation Determined - Tort Law

How is causation determined?

Factual Causation

• Giliker: Factual causation is difficult subject with numerous approaches

  • Law will either confine itself to one approach

  • Or do a number

    • Stapleton: confusion comes because Judges themselves aren’t entirely sure of what they’re doing

      • and use different words to describe the same thing

      • or the same word to describe different things...

• The pragmatic approach

  • Giliker: Relationship between cause and effect = complex

    • Philosophically speaking, effect could come from a number of causes

      • E.g. if I hadn’t been born, I wouldn’t have driven over X while not looking through the windscreen

        • Therefore, my parents/distant ancestors are to blame.

    • Therefore, law does not take philosophical approach

    • Causation = causation in the terms of man on the street

      • Problem = this approach doesn’t always work so we need other approaches

• But for approach

  • Law’s starting test = “but for” test

    • Can it be said that ‘but for’ the defendant’s negligence the claimants loss would not have occurred?

      • If “yes” = caused

    • OR Would the claimant’s loss have occurred in any event, even without D’s intervention?

      • If “Yes” = not caused

  • Barnett v Chelsea and Kesington Hospital [1969]:

    • Man drinks poisoned tea, arrives at hospital, sent away, dies.

      • Held that breach of duty

      • BUT “but for” D’s actions, C would have died anyway

        • Therefore D’s negligence had not caused C’s death.

  • Bolithio v CHHA [1998]:

    • Lord Wilberforce: If D is in breach of duty, can’t argue Result X would have happened anyway

      • if this would be down to another breach of the duty of care.

  • Problem with but for approach

    • Giliker: where multiple causes, you run into problems

      • Fisher: e.g. two fires converge on house destroying it

      • Fire A can say loss would have occurred anyway cos of Fire B

      • Fire B can use same argument =

        • No way for C to claim against anyone

    • Can lead to an unjust result

• NESS Test (Necessary Element of Sufficient Subset)

  • Contributory Cause

    • Stapleton: Suppose X is expelled by unanimous vote of 9 people, where 6 necessary for expulsion

    • Can’t say Committee Member 1 is “cause” because his vote on its own was not necessary to bring about X’s expulsion

      • Could then say that about every cause

      • So instead, apply NESS

      • In hypothetical world, votes 7, 8 and 9 don’t exist

        • Thus Committee Member 1’s vote is necessary to bring about sufficient result (majority of 6)

          • Thus Committee Member 1’s vote = cause b/c necessary contribution to the sufficient subset.

  • Duplicate Cause

    • Stapleton:

      • Hunter A and Hunter B both shoot negligently, C is hit by both bullets and dies but shown that only one bullet necessary for death. But for test means both A and B are not liable.

        • BUT Apply NESS

          • Ask “In situation where all factors are present except duplicate action of B, would A’s contribution be necessary and sufficient to bring about result?”

            • Answer = yes

              • Thus A = cause of death

            • Then apply same reasoning to B = B also cause of death

              • Meaning they are jointly liable.

Special Proof Rules

• Concurrent Causes

  • Causes in question occur more or less simultaneously

  • Indeterminate Cause

    • More than one D

    • But only one operating cause of C’s loss

      • Unclear which of the D’s acts produced the cause

      • Cocklin v Lewis [1951] CAN

        • Hunting accidents where C injured by one bullet

        • But two D’s negligently firing at his direction and no way to tell whose bullet was the cause of D’s injury.

        • Held approach = make joint tortfeasors and hold both jointly liable.

      • English courts apply this in Fairchild

        • Giliker: BUT courts in England more conservative. If natural cause potentially behind injury, X has to prove D should be liable instead – per Wilsher.

  • Cumulative Cause

    • Where harm to C by act of A only occurs owing to combination with act of B

    • i.e. where negligent act 1 combines with negligent act 2 to create actual injury to C

      • Giliker: e.g. where negligent driver A crashes and blocks the road, and negligent driver B crashes into A, causing injury to C

      • A is jointly liable with B

        • Fisher: Act of A is a necessary subset of the situation as a whole (sufficiency) as without Act of A, act of B would not be sufficient either.

        • i.e. both are necessary subsets causing sufficient result (probably)

          • Fisher: must be conceded that NESS test has limitations here, and common sense has to prevail

          • Essentially, you aggregate the causes together until each cause is “necessary” combined to create “sufficiency” of tort.

• Consecutive Causes

  • Key issue = whether the performance of a 1^st act has been obliterated by the effect of a 2^nd act

    • i.e. in the light of what the 2^nd person did, the 1^st person’s act can be said to have had no effect.

  • Baker v Willoughby [1970]: D’s negligence injures C’s leg, means he has trouble walking. Before trial, C then attacked and sustains more serious injury meaning said leg has to be amputated. D claims only responsible for cost of C’s injury up to amputation.

    • Lord Reid:

      • A man is not compensated for the physical injury,

        • he is compensated for the loss which he suffers as a result of that injury

      • Because the 2^nd injury had not diminished the loss the plaintiff would continue to suffer, it could not be said to have “obliterated” the 1^st injury

• Lord Pearson:

  • This result was necessary in order to avoid “manifest justice”

    • Achieved by taking a comprehensive and unitary view of the damage caused by the original accident”

      • and the fact that the thieves probably couldn’t pay even if they were found

  • Jobling v Associated Daires Ltd [1982]: Owing to negligence of D,...