Causation in Negligence

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  • Created by: Calgary
  • Created on: 10-05-12 11:19

Causation in Negligence

  • To prove D's negligence, C must show a causal link between D's failure and C's damage.
  • Different from causation in science: a normative aspect, need to attribute legal responsibility

Factual Causation: D's breach must be found to be a necessary condition of the occurence of harm (e.g but-for test). Tested on the 'balance of probabilities'.

But-For Test: Concerned with counter-factuals: hypothetically, taking D's failure out of equation would C have suffered damage? But-for the breach, would any harm have occurred?

  • Yes: Breach not a cause.
  • No: Breach a cause.

However, there are deficiencies with this test:

  • Unsatisfactory in range of cases - e.g cases where there is an evidential gap, over-determination cases, succesive cause cases.

The possible alternative to this is the NESS test:

  • 'A particular condition was a cause of a specific consequence if it was a necessary element of a set of antecedent actual conditions that was sufficient for the occurrence of the consequence.'
  • This is not yet adopted in Courts.

Concurrent Causes: Two or more causes operating concurrently - court can't tell exact contribution of each to damage.

  • McGhee v Coal Board: Factors - dust and unavailability of showers. Couldn't tell if latter 'material'. Test = look for material addition to RISK of injury.

Seperate Causes: 2+ facterials, each may have been sufficient/material, acting at same time and of separate origin

Ordinarily causation of negligence not proven and claim fails.

  • Fairchild v Glenhaven Funeral: 6 Factors permit finding of Causation...

1. C employed at different time by A and B

2. A and B both under duty to prevent inhalation

3. A and B in breach, C exposed

4. C sufferred from mesothelioma

5. Inhalation only possible cause

6. C cannot prove mesothelioma result of

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