Chapter 9
Causation:
9.1 The basics:
The victim of a breach of a duty of care will not be able to sue in negligence unless she can
show that the breached caused her to suffer an actionable loss.
^ If not, compensatory damages no awarded.
The ‘but for’ test.
^ Inadequate-> often paradoxical.
- Limits of the ‘but for’ test:
1. Over-determination-> when C’s injury was brought about by 2 different causes; both of
which would’ve been sufficient to bring the injury. E.g., two gunmen shooting C at the
same time-> the test allows them to both say that ‘but for’ my action, C would’ve died
due to the other gunmen-> no causation found for either. Lambton v Mellish [1894] 3 Ch
163-> example of a court finding causation in an over-determination case.
2. Pre-emption -> cases where although the C’s injury are brought about by D’s action, if
the D hadn’t performed that action, some other force would’ve come into action that
would’ve caused the same result. D’s actions were a pre-emption. For example, D
crashes his car into C (who was on his way to the airport) and who then died. The plane
crashes and everyone dies. C would’ve died regardless; pre-emption. American case->
Dillion v Twin State Gas & Electric.
3. False positive result; e.g. Footballer scores a last minute goal. Gambler loses his bet.
Gambler gets angry and stabs someone in a pub. Cannot be said that Footballer made
Gambler stab someone in a pub, even though Gambler wouldn’t have had been angry
had Footballer not scored that last goal.
Main additional tests to the ‘but for’ test-> break in the chain of causation test and the
material increase in risk test.
o Break in the chain of causation test-> used to explain the Footballer-Gambler
example. Gambler’s actions were deliberate, informed and voluntary (also
unreasonable).
o Material increase to risk-> Fairchild v Glenhaven [2003]
The tests may still produce undesirable outcomes. The application of the alternative tests
mean that a breach of a particular duty of care would never give rise to a liability to pay
compensatory damages to the victim of the breach, because the D breaching the duty of
care could always rely on these tests to say that his breach did not cause the victim of the
breach to suffer any loss.
Chain of causation argument;
Possible for more than one person to cause something to happen.
Academics try to express the distinction between the ‘but for’ test for causation and
tests that are designed to modify or supplement the ‘but for’ test by saying that the
‘but for’ test is concerned with factual causation while tests like the ‘break in the
chain of causation’ and the ‘material increase to risk’ test are concerned with legal
causation. McBride + Bagshaw =/ fans of this distinction because:
1. Doesn’t make sense for the alternative tests to have no bearing on the issue of
whether the D’s actions in fact caused a particular outcome to occur.
2. The distinction between fact and legal causation doesn’t add to our
understanding of the law. Lawyers as prone to lying about causation-> refusing
Causation:
9.1 The basics:
The victim of a breach of a duty of care will not be able to sue in negligence unless she can
show that the breached caused her to suffer an actionable loss.
^ If not, compensatory damages no awarded.
The ‘but for’ test.
^ Inadequate-> often paradoxical.
- Limits of the ‘but for’ test:
1. Over-determination-> when C’s injury was brought about by 2 different causes; both of
which would’ve been sufficient to bring the injury. E.g., two gunmen shooting C at the
same time-> the test allows them to both say that ‘but for’ my action, C would’ve died
due to the other gunmen-> no causation found for either. Lambton v Mellish [1894] 3 Ch
163-> example of a court finding causation in an over-determination case.
2. Pre-emption -> cases where although the C’s injury are brought about by D’s action, if
the D hadn’t performed that action, some other force would’ve come into action that
would’ve caused the same result. D’s actions were a pre-emption. For example, D
crashes his car into C (who was on his way to the airport) and who then died. The plane
crashes and everyone dies. C would’ve died regardless; pre-emption. American case->
Dillion v Twin State Gas & Electric.
3. False positive result; e.g. Footballer scores a last minute goal. Gambler loses his bet.
Gambler gets angry and stabs someone in a pub. Cannot be said that Footballer made
Gambler stab someone in a pub, even though Gambler wouldn’t have had been angry
had Footballer not scored that last goal.
Main additional tests to the ‘but for’ test-> break in the chain of causation test and the
material increase in risk test.
o Break in the chain of causation test-> used to explain the Footballer-Gambler
example. Gambler’s actions were deliberate, informed and voluntary (also
unreasonable).
o Material increase to risk-> Fairchild v Glenhaven [2003]
The tests may still produce undesirable outcomes. The application of the alternative tests
mean that a breach of a particular duty of care would never give rise to a liability to pay
compensatory damages to the victim of the breach, because the D breaching the duty of
care could always rely on these tests to say that his breach did not cause the victim of the
breach to suffer any loss.
Chain of causation argument;
Possible for more than one person to cause something to happen.
Academics try to express the distinction between the ‘but for’ test for causation and
tests that are designed to modify or supplement the ‘but for’ test by saying that the
‘but for’ test is concerned with factual causation while tests like the ‘break in the
chain of causation’ and the ‘material increase to risk’ test are concerned with legal
causation. McBride + Bagshaw =/ fans of this distinction because:
1. Doesn’t make sense for the alternative tests to have no bearing on the issue of
whether the D’s actions in fact caused a particular outcome to occur.
2. The distinction between fact and legal causation doesn’t add to our
understanding of the law. Lawyers as prone to lying about causation-> refusing
