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Law Notes Tort Law Notes

How Is Causation Determined Notes

Updated How Is Causation Determined Notes

Tort Law Notes

Tort Law

Approximately 1070 pages

Tort Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB tort law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

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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...

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