Causation Notes

CAUSATION

Question of causation more than a factual question – infused with legal consideration

• All legal systems have the same two-stage structure: factual causation, then legal causation.

1. FACTUAL CAUSATION – CAUSE AS AN INQUIRY INTO THE SEQUENCE OF EVENTS

All systems take as a starting point the notion of conditio sine qua non or “but for” test in CL, which is applied relatively mechanically

• In order for an event or a circ to be considered at all as a cause of the injury to the V, must be demonstrated that the injury would not have occurred but for that event

1. DE

First stage of the causation inquiry – notion of conditio sine qua non decisive in establishing causation in the natural or logical sense: Kausalität in natürlichen Sinne

• Hinwegdenken process: conduct of the C must be “assumed away” from the remaining course of events in order to see whether same result (with the same legal significance) would still have occurred – BGH 2 July 1957

2. EN

First stage of the causation inquiry: but-for test established on basis of balance of probabilities test – Barnett v Kensington (1968): doctor misdiagnosed that patient suffered from arsenic poisoning not liable as even with correct diagnosis, condition too far advanced to make a difference

Requirement of material contribution – Bonnington Castings (1956): as long as has made material contribution, 100% liable

3. FR

Theory of équivalence des conditions relies essentially on the but-for test underpins causation

This is expressed in requirement that the causal be certain – Ghigo (1985): P a teenager was caught committing theft in the D’s store. As a form of punishment sent her home barefoot. Upon arriving at her home, jumped out of the window

• The causal link between the conduct of the alleged tortfeasor and the harm to the P must be certain

  • Here not satisfied that punishment inflicted had contributed with certainty to her being injury by jumping out

Requirements of directness –X v GAN (1990): mother of a young child killed in a car accident by D. Child joined his father in Saudi Arabia. Child could not adapt and as a consequence the P had to give up his well-paid position in order to return to FR with his son. Sued the D for the damage flowing from loss of his employment

• Causal link between the conduct of the alleged tortfeasor and the harm to the P must be direct

  • Here no direct causal link existed between the harm resulting from P’s voluntary resignation from his employment and the traffic accident of which the child’s mother was the victim

  • Harm suffered by the P arose from his own decision to come back to FR

But the requirement of directness is very uncertain – causation not always negated by subsequent intervention

• Breach of obligations de moyens – L’Olympique Lyonnais v Fuster: spectators injured by hooligans football club liable on the ground had not taken proper measures to ensure the safety of spectators direct link since omissions of football club had put hooligans in a position to injure spectators

• Franky v Courtellemont: P infected by HIV as a result of blood transfusions following an accident for which the D was responsible liable on the basis of the equivalence theory, direct causal link

How to understanding conflicting case-law on directness?

• Jourdain: in light of large case law where causation not denied despite the fact that the harm is an ulterior consequence of the D’s conduct it can no longer be said that directness is relevant to causation;

  • Cases where causation is denied because of indirectness = cases of uncertain causation or absence of fault

• Le Tourneau & Cadiet: intervening act breaks the chain of causation only if it constitutes a fault of at least equal importance to that of D otherwise D held liable for for the ulterior consequences of her conduct

4. Problems of but-for causation

Reflects rudimentary understanding of causation

• Assumed that an event either caused or did not cause a certain result (all-or-nothing approach)

  • Role of causation reduced to establishing a factual link between the event triggering D’s liability and C’s injury injury

Von Bar: central problem of but for = cannot suffice to distinguish between causes and mere circ.

2. LEGAL CAUSATION – PROBABILISTIC ELEMENTS + NORMATIVE APPROACH TO CAUSATION

1. All systems have sought to limit potential scope of strict but-for test

   1. DE

DE distinguishes between Kausalität in natürlichen Sinne and Kausalität in rechtlichen Sinne: adequacy theory of causation

• Aim of adequacy theory = to reduce D’s potential scope of liability

A probabilistic theory of Träger was adopted by the courts: an event is the adequate cause of a particular result if “generally increases, in a significant way, the objective probability of a result of the kind which occurred” – Vessel Sunk in Lock (1951)

• Probabilities assessed from point of view of an “optimal observer” knowing all the circ surrounding injurious event which could be known at the time of that event + equipped with general experience of mankind

  1. EN

Causation in law or remoteness of damage following causation in fact

• Wagon Mound: test for remoteness is “reasonable foreseeability” as opposed to “directness” which prevailed until then until Polemis

Test also based on probabilities

• Damage is too remote when of a kind that the reasonable person could not have foreseen

• Characterisation of damage plays central role: where kind of damage reasonably foreseeable, D’s liability extends to whole extent of damage irrespective of how brought about – Hughes v Lord Advocate

  1. FR

FR remains more attached to theory of equivalence des conditions, thus often relies on but-for test alone

Full impact of equivalence moderated by a series of developments where probabilistic considerations play a significant role at 2 levels:

1. Although often not acknowledged as such, FR case-law often complements equivalence with an explanatory/adequacy theory not enough that jury could not have happened without...

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