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…