Email your librarian or administrator to recommend adding this book to your organisation's collection. A’s car rear ends B’s car, resulting in damage to the back end of B’s car. Medical Negligence The test simply asks, "but for the existence of A, would B have occurred?" Law of delict (DLR 320) Academic year. If yes, the defendant is not liable. Factual causation is the second element of causation discussed above. 4 See Jane Stapleton, 'Cause-in-Fact and the Scope of Liability for Consequences' (2003) 119 Law Quarterly Review 388, 394–5 (hereafter 'Cause-in-Fact'). The but-for test is a test commonly used in both tort law and criminal law to determine actual causation.. In most cases a simple application of the 'but for' test will resolve the question of causation in tort law.Ie 'but for' the defendant's actions, would the claimant have suffered the loss? Tests for factual causation  The ‘but for’ test  The common-sense approach  The Bonnington ‘material contribution to harm’ test  The Fairchild ‘material contribution to the risk of harm’ test  The Chester v Afshar ‘fairness and justice’ test  The Allied Maples test for the lost chance of avoiding financial harm 1. Factual causation: the 'but for' test There must be a factual determination as to whether the defendant's actions caused the claimant's harm. If a person factually causes the death of another, then it is clear that they criminally caused their death. On the other hand, demonstration that the wrongful act was a causa sine qua non of the loss does not necessarily result in legal liability. Causation and Counterfactual Baselines, 40 San Diego L. Rev. University of Pretoria. It is submitted that the implications of these dicta in the present matter are the following: The alleged wrongful omission attributed to the third defendant must be thought away, and a hypothetical course of affirmative, lawful conduct must be substituted therefor, in the circumstances that otherwise prevailed. Close this message to accept cookies or find out how to manage your cookie settings. The question is entirely one of fact. The first case summaries involve questions of factual causation, which usually requires an application of the ‘but-for’ test. In Lee v Minister of Correctional Services 2013(2) SA 144 (CC) the question arose whether Two matters need to be considered: (i) did the defendant in fact cause the victim’s death – that is factual causation and if so (ii) can he be held to have caused it in law- legal causation A) Causation in fact (but for test was established) R V WHITE To establish causation in fact, the “But for” Test … 1 – Factual Causation The Courts usually apply the ‘but-for’ test to determine whether the act of the defendant factually ‘caused’ the claimant’s loss. Hospital Negligence The second enquiry then arises, viz whether the wrongful act is linked sufficiently closely or directly to the loss for legal liability to ensue or whether, as it is said, the loss is too remote. It is not a matter of adducing evidence, as the Supreme Court of Appeal appears to have found. This enquiry may involve the mental elimination of the wrongful conduct and the substitution of a hypothetical course of lawful conduct and the posing of the question as to whether upon such an hypothesis plaintiff’s loss would have ensued or not. In principle, all of those are necessary events from the point of view of factual causation. law of delict. The law does not require proof equivalent to a control sample in scientific investigation. This process of mental elimination may be applied with complete logic to a straightforward positive act which is wholly unlawful. It can be divided into factual causation and legal causation. If the loss would have happened in any event, then the breach could not be said to have caused the loss. University. Product Liability Factual causation: whether there is a physical connection (scientific and objective notions of physical sequence) between defendant's wrong and claimant's damage; "But for" test; Legal caustaion: which event will be treated as the cause for the purpose of attributing legal responsibility? Corr v IBC Vehicles [2008] Committing suicide did not break the chain of causation - had to consider the 'but for' test. What does the 'but for' test ask? Course. In most cases, factual causation alone will be enough to establish causation. Omissions may be negligent where the defendant has a duty, such as in the case of an employer, who must provide a safe system of work and safe equipment. If the loss would have happened in any event, then the breach could not be said to have caused the loss. 2016/2017. In many instances, however, the enquiry requires the substitution of a hypothetical course of lawful conduct for the unlawful conduct of the defendant and the posing of the question as to whether in such case the event causing harm to the plaintiff would have occurred or not; a positive answer to this question establishing that the defendant’s unlawful conduct was not a factual cause and a negative one that it was a factual cause. If it would, then the unlawful conduct of the defendant was not a cause in fact of this event; but if it would not have so occurred, then it may be taken that the defendant’s unlawful act was such a cause. The 'scope of duty' test for legal causation is illustrated in a medical context and it is argued that where the negligence consists of a failure to warn the patient of the risks involved in treatment, although the harm is clearly within the scope of the doctor's duty, it is wrong to establish liability in the absence of factual causation. 3. This chapter examines factual causation doctrine in isolation and derives some rules for navigating this most intractable part of tort law. If the claimant cannot establish that it is more likely than not that they would have avoided the loss but for the breach, the claim with normally fail: Wilsher v Essex [1988] 1 AC 1074. Barnett v Chelsea & Kensington Hospital 1 QB 428 Causation Practical Law UK Glossary 4-107-5865 (Approx. Sign in Register; Hide. We looked closely, in Chapter 9, at some factual and proximate causation issues in contributory negligence cases. The conventional approach to causation in negligence is the "but for" test, decided on the balance of probabilities. In The Law of South Africa (ibid para 48) it is suggested that the elimination process must be applied in the case of a positive act and the substitution process in the case of an omission. If it would, that conduct is not the cause of the harm. If the wrongful act is shown in this way not to be a causa sine qua non of the loss suffered, then no legal liability can arise. A negligence action can be broken down into four components: duty, breach, causation, and damages. 1181, 1237 (2003). When a person is injured due to another persons or entitys negligence, he or she can recover economic and noneconomic damages that flow from the negligence. Focusing on individual cases, however, could cause one to lose sight of the rules and, more importantly, the policies in this area. ⇒ Factual causation is established by applying the 'but for' test. It is also termed as but for cause or cause in fact or factual cause. Medical Law The ‘but-for’ test is generally employed as the basic test for causation in fact. Unsurprisingly, the courts do not accept this reasoning. The problems and difficulties regarding ‘factual causation’ in law point to the need of ‘evidence’ and ‘proof’ models that are adequate and capable to accommodate the tests and methodologies used to explain and demonstrate it in a legal context. On the conventional account of actual causation, a tortfeasor causes injury to a victim if the victim’s injury would not have occurred but for the tortfeasor’s tortious action.19×19. This test is applied by asking whether but for the wrongful act or omission of the defendant the event giving rise to the loss sustained by the plaintiff would have occurred. [57] Postulating hypothetical lawful, non-negligent conduct on the part of a defendant is thus a mental exercise in order to evaluate whether probable factual causation has been shown on the evidence presented to court. If the answer is in the … The but-for test is satisfied only if the defendant's negligence is a necessary condition for the injury. ?but for D?s action, would C?s loss still have occurred?'. Sept. 19751 A STEP FORWARD IN FACTUAL CAUSATION 521 pendent and individually sufficient causal factors, the substantial factor test can be applied with adequate results. This is often referred to as the chain of causation. The causation element involves establishing that the defendant's negligence caused the claimant's harm, both factually and in law. This is the starting point on finding causation. UN-2 With such a ‘but for’ test, sometimes also referred to as factual causation , any loss that could be traced back through a causal chain to the invasion and occupation would be compensable. This test would in turn help determine what the position of the claimant would have been had it not been for the defendant’s breach of duty. I accept that the postulate must be grounded on the facts of the case, but that is not the same as saying that there is a burden on the plaintiff to adduce specific evidence in relation thereto. The test for factual causation is the sine qua non ( or “but for” ) test. This has been referred to as ‘factual causation’. Factual causation The ‘but for’ causation is a test used by the court to establish fault of the defendant which caused damage to the claimant. A straightforward example of this would be where the driver of a vehicle is alleged to have negligently driven at an excessive speed and thereby caused a collision. The but-for test is often used to determine actual causation. The ''but for'' test and ''proximate cause'' test are used to determine causation. University. But in this analytic framework in which a second test has been excogitated in order to paper ovm the deficiencies of … The traditional approach to factual causation seeks to determine whether the injury would have happened even if the defendant had taken care. So there must be a factual link between the defendant and the harm caused. The 'scope of duty' test for legal causation is illustrated in a medical context and it is argued that where the negligence consists of a failure to warn the patient of the risks involved in treatment, although the harm is clearly within the scope of the doctor's duty, it is wrong to establish liability in the absence of factual causation. Proximate Causation: A cause that is legally sufficient to result in liability. White. The long accepted test of factual causation is the ‘but-for’ test. If the answer is in the … Personal Injury , Medical Malpractice and Labour Law, Malcolm Lyons and Brivik Inc. are leading Attorneys in South Africa specialising in:  27× 27. Substitution and elimination in applying the but-for test are no more than a mental evaluative tool to assess the evidence on record. Causation in criminal liability is divided into factual causation and legal causation. It entails the hypothetical “thinking away” of a particular alleged cause of a result and asking whether, absent that cause, the offending result would nonetheless have occurred. 2016/2017. In order to apply this test one must make a hypothetical enquiry as to what probably would have happened but for the wrongful conduct of the defendant. If so, a causal link is established; but if not, there is none. Factual Causation. We use cookies to distinguish you from other users and to provide you with a better experience on our websites. See Hart &Honoré, supra note 4, at 110 (“So when a negative answer is forthcoming to the question ‘Would Y have occurred if X had not?’ X is referred to not merely as a ‘necessary condition’ or sine qua non of Y but as its ‘cause in fact’ or ‘material cause.’”). This should not be regarded as an inflexible rule. 75 of 1997), Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), The Occupational Health and Safety Act 85 of 1993 (OHSA), Unemployment Insurance Act No. If the answer is yes then this may enable D?s action to be eliminated from the list of possible causes. Our courts now adopt a two-phase enquiry into causation: firstly into factual causation, by means of the conditio sine qua non test, and secondly into legal causation, based on policy considerations of reasonableness, fairness, and justice, as informed, however, by various specific tests of legal causation. The ‘but for’ test, one of the forms of causation and also known as factual causation, is used to establish a causal link between the tort suffered by the claimant through the actions of the defendant. Personal Injury In order to determine whether there was factually a causal connection between the driving of the vehicle at an excessive speed and the collision it would be necessary to ask the question whether the collision would have been avoided if the driver had been driving at a speed which was reasonable in the circumstances. Factual causation is the starting point and consists of applying the 'but for' test. This is known as the but-for test: Causation can be established if the injury would not have happened but for the defendant's negligence. If yes, D is not factual cause If no, D is the factual cause. The courts use a “but-for” test to determine the answer to this question. As a preliminary matter, there is one strikingly prominent source of confusion in the but-for analysis of causation. the following in a minority judgment ( at 914 in fine ): “The enquiry as to factual causation generally results in the application of the so-called “but-for” test, which is designed to determine [915] whether a postulated cause can be identified as a causa sine qua non of the loss in question. MALCOLM LYONS & BRIVIK INC. In some instances this enquiry may be satisfactorily conducted merely by mentally eliminating the unlawful conduct of the defendant and asking whether, the remaining circumstances being the same, the event causing harm to plaintiff would have occurred or not. Doesn't it follow, then, that any tort suit brought in response to a negligent killing must be rejected on factual causation grounds? What is required is postulating hypothetical lawful, non-negligent conduct, not actual proof of that conduct. Take the case of death: My negligent conduct leads to your death; for example, by driving negligently I run you over with my car, killing you. law ‘but-for’ test (implying that, in his view, such test is the be all and end all for factual causation), and that the common law ought to be developed to prevent the unjust outcome of the SCA judgment. Factual causation must be established on the balance of probabilities. Applying the sine qua non test, the SCA declined to draw the inference. Factual causation. The causation prong subdivides further into factual and proximate causation. So, to take a very simple example, where A has unlawfully shot and killed B, the test may be applied by simply asking whether in the event of A not having fired the unlawful shot (ie by a process of elimination) B would have died. it could be inferred as a matter of fact that a previously healthy man had contracted tuberculosis as a result of the authorities’ failure to provide appropriate prophylactic care when they incarcerated him for several years in an overpopulated gaol, where tuberculosis was rife. ( test is based on a clumsy, indirect process of thought that results in a circular logic ( test fails completely in cases of so-called cumulative causation. The long accepted test of factual causation is the ‘but-for’ test. The ''but for'' test and ''proximate cause'' test are used to determine causation. The two-tiered test: Factual causation and legal causation. test is and how it works: i.e. But for test is one of several tests to determine if a defendant is responsible for a particular happening. On appeal, the Supreme Court of Appeal (SCA), in a unanimous judgment, applied the standard common law ‘but-for’ test to determine factual causation, and found in favour of the Minister: ‘The difficulty that is faced by Mr Lee is that he does not know the source of his infection. The notion of “cause in fact” becomes difficult to apply in the case of omission. The test asks, "but for the existence of X, would Y have occurred?" In the case of wrongful omissions, the application of the sine qua non test typically requires the substitution of a hypothetical course of lawful conduct for the omission that actually occurred. This is shown by the case of R v White. Causation in criminal liability is divided into factual causation and legal causation. It entails the hypothetical “thinking away” of a particular alleged cause of a result and asking whether, absent that cause, the offending result would nonetheless have occurred. Causation: The causing or producing of an effect. R v White. The conventional approach to causation in negligence is the "but for" test, decided on the balance of probabilities. 6. University of Pretoria. Hence, it would appear that I have a pretty good factual causation defense against the negligence lawsuit brought by your survivors: You would have died at some point anyway. Factual Causation Introduction to Causation Both factual and legal causation are general requirements for delictual liability and are applicable in principle to. Factual Causation Burden on the claimant to show factual causation, and that it is more probable than not that D is responsible for the injuries 'But For' Test Applied in simple cases Course. Having reiterated the remarks of Corbett JA in Siman’s case about the limits of the substitution exercise, and having found that a “common sense” approach to factual causation might sometimes be more apposite, the majority nonetheless approved the substitution exercise, although expressing the following qualification: “[56] Even if one accepts that the substitution approach is better suited to factual causation, the preceding discussion shows that there is no requirement that a plaintiff must adduce further evidence to prove, on a balance of probabilities, what the lawful, non-negligent conduct of the defendant should have been. 63 of 2001, Rules for the Conduct of Proceedings before the CCMA, Protection of Personal Information Act 2013, Electronic Communications and Transactions Act No. Abstract. Causation: factual causation and legal causation. The test for factual causation is the sine qua non ( or “but for” ) test. This asks, 'but for the actions of the defendant, would the result/consequences have occurred?' For establishing the doctrine of causation, one must investigate into ‘factual causation’ and ‘legal causation’, thereby convicting anyone of legal liability. This is basically a juridical problem in the solution of which considerations of policy may play a part. He or she will also have to prove duty, breach of duty, and damages. Even when supplemented by the "material contribution" principle, satisfying the onus of proof of causation can be an insuperable obstacle for plaintiffs, particularly in medical cases. The 'but for' test. Labour Law Factual ("but for") Causation: An act or circumstance that causes an event, where the event would not have happened had the act or circumstance not occurred. To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant. If the claimant cannot establish that it is more likely than not that they would have avoided the loss but for the breach, the claim with normally fail: Wilsher v Essex [1988] 1 AC 1074. A sufficient policy rationale is that if such a defense were accepted, tort law would unravel. Factual causation is the starting point and consists of applying the 'but for' test. This is sometimes called ‘legal causation’. Establishing Factual Causation. There is a test namely ‘but for’ test. 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Has been referred to as the basic test for factual causation is the `` but for '' test are more. Or administrator to recommend adding this book to your organisation 's collection to... Is split into factual causation doctrine in isolation and derives some rules for navigating this most part... Abstract rules a particular happening basic test for factual causation is the ‘ but-for ’ test however, in circumstances. A mental evaluative tool to assess the evidence on record, not actual proof that! Of some foreign judgments dealing with Analyse the strengths and weaknesses of the ‘ ’! For delictual liability and are applicable in principle to can not find factual causation the Supreme Court of appears. Probable outcome would have been different from that which actually occurred ) Academic year require proof equivalent to straightforward!, the SCA declined to draw the inference the back end of B ’ s car rear ends B s.