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How Is Causation Determined Notes

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How is causation determined?
Factual Causation

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Giliker: Factual causation is difficult subject with numerous approaches o Law will either confine itself to one approach o Or do a number
? Stapleton: confusion comes because Judges themselves aren't entirely sure of what they're doing

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and use different words to describe the same thing

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or the same word to describe different things...

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The pragmatic approach o Giliker: Relationship between cause and effect = complex
? Philosophically speaking, effect could come from a number of causes

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

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

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But for approach o 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?

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If "yes" = caused
? OR Would the claimant's loss have occurred in any event, even without D's intervention?

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If "Yes" = not caused o Barnett v Chelsea and Kesington Hospital [1969]:
? Man drinks poisoned tea, arrives at hospital, sent away, dies.

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Held that breach of duty

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BUT "but for" D's actions, C would have died anyway o Therefore D's negligence had not caused C's death. o Bolithio v CHHA [1998]:
? Lord Wilberforce: If D is in breach of duty, can't argue Result X would have happened anyway

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if this would be down to another breach of the duty of care. o Problem with but for approach
? Giliker: where multiple causes, you run into problems

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

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

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Fire B can use same argument =
o No way for C to claim against anyone
? Can lead to an unjust result

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NESS Test (Necessary Element of Sufficient Subset) o Contributory Cause

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