What is causation?
Causation looks at whether there is a link in fact and in law between the wrongdoer’s conduct and the patrimonial harm that has been suffered by the victim (Lee)
What are the two prongs of causation?
Two prongs of causation, which both need to be satisfied (Lee):
- Factual causation, whether the negligent act or omission caused the harm giving rise to the claim
- Legal causation, whether the negligent act or omission is linked to the harm sufficiently closely or directly for legal liability to ensue or whether the harm is too remote
What is the difference between factual and legal causation?
Factual causation is a question of facts and doesn’t involve legal policy; it is not a normative element. While legal causation limits legal liability through policy considerations related to remoteness of harm (Lee)
What is the link between factual and legal?
Factual causation is a precondition/requirement for legal causation (Lee)
How is factual causation determined?
Factual causation is a precondition/requirement for legal causation (Lee)
What is the primary test of factual causation?
Factual causation primary test is the ‘but for test’ (condictio sine qua non), we are establishing whether the wrongdoer’s conduct results in the victim’s harm. The main question is would the victims’ harm have occurred but for the wrongdoers conduct (Lee)
What is the but for test in commission and omission?
- In a commission, the conduct is mentally removed to determine whether the relevant consequence would still have resulted.
- In an omission, the but-for test requires that a hypothetical positive act be inserted in the particular set of facts, the so-called mental removal of the defendant’s omission. This means that reasonable conduct of the defendant would be inserted into the set of facts.
How is factual causation applied?
Factual causation is not applied rigidly but flexibly when the strict application of the ‘but for test’ will lead to injustice. (Lee)
howis the but for test applied?
The but-for test will be applied flexibly when there are various causes of conduct leading to the harm, and we will examine whether the conduct of the wrongdoer increased the risk/probability of harm and whether steps could have decreased this risk (Lee/Alistair Prince)
When do we use the flexible test?
The primary test is the but-for test, but only where the traditional but-for test is inadequate to establish a causal link, we will refer to the flexible test as discussed in Lee (Mashongwa)
What is the increased risk test?
If the conduct of the wrongdoer increased the risk/probability of harm and whether steps could have decreased this risk, this is the increased risk test (Prince)
When is the but for test inappropriate?
The but-for test is inappropriate in cases where we have “concurrent causes”, “supervening causes”, and/or “evidentiary gaps”, in these cases, we will use the increased risk test. (Prince)
What are concurrent causes?
Concurrent causes are when two independent acts are contributing to the harm at the same time, and both increase the risk of harm. The person’s independent conduct increases the risk of harm and would cause harm independently
What are supervening causes?
Supervening causes are when one negligent and wrongful act follows the other, and both contribute to the harm. These are acts that are separate in time, but both increase the risk.
What are the evidentiary gaps?
Evidentiary gaps are where there is wrongful and negligent conduct, but the exact cause of harm cannot be established, as was the case in Lee
What approach do we use to determine legal causation
We use a flexible or elastic approach to determine whether the wrongdoer’s conduct is
close enough to the victim’s harm to be labelled as the “legal cause”.The flexible enquiry requires that the judge must consider the relevant policy considerations of reasonableness, equity, and fairness should guide our enquiry. These policy considerations are thankfully embodied in a variety of tests or theories, include proximity, directness, adequacy,
foreseeability, and the novus actus interveniens principle (Mokgethi)
What is the direct cause mean?
Direct cause is if the harm is the direct result of a wrongdoer’s conduct, the wrongdoer is the legal cause of the harm (Polemis)
What does foreseeable cause mean?
foreseeable cause states that if a wrongdoer’s conduct would be the legal cause of harm for any “natural or necessary or probable consequences of his act” (Wagonmound I)
What is NCI?
Novus actus interveniens states that as a happening after the wrongdoer’s conduct that is “independent, unforeseen and unexpected” and thus breaks the causal chain of events. Let us consider two examples to illustrate this concept (Daniels)
What is the adequate cause?
Adequate cause holds that the conduct in question has the tendency to result in the general nature of the harm caused according to human experience. (Daniels)
what is the overarching standard of legal causation?
The overarching standard for legal causation is to ensure that reasonableness, equity, and fairness are realised (Mokgethi)
How does legal caustion deal with remotness?
Legal causation considers the remoteness of damage between the act and the negligence. Remoteness is determined by considerations of policy; this is a flexible test, it is determined by considerations of reasonableness, fairness and justice. (Fourway Haulage)
What application do you apply to the forseability test?
Applying the strict application of both the foreseeability test and the direct consequences test for remoteness would lead to a result which is so unfair and unjust that it would be regarded as untenable (MCubed)
