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How Is Causation Determined Notes

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How is causation determined?
Factual Causation

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

and use different words to describe the same thing

or the same word to describe different things...

The pragmatic approach o 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 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

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

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?

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

If "Yes" = not caused o 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 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

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

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 =
o No way for C to claim against anyone
? Can lead to an unjust result


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

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