University. 2016/2017. Factual causation. What is required is postulating hypothetical lawful, non-negligent conduct, not actual proof of that conduct. 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. In my view, this hypothetical exercise shows that probable causation has been proved.”. The courts use a “but-for” test to determine the answer to this question. 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. Third Party Claims We use cookies to distinguish you from other users and to provide you with a better experience on our websites. What is the authority for factual causation? Factual causation requires proof that the defendant’s conduct was a necessary condition of the consequence, established by proving that the consequence would not have occurred but for the defendant’s conduct. What does the 'but for' test ask? 2016/2017. Factual Causation Introduction to Causation Both factual and legal causation are general requirements for delictual liability and are applicable in principle to. R v White. There is a test namely ‘but for’ test. Tort law uses a ‘but for’ test in order to establish a factual link between the conduct of the defendant and the injuries of the claimant. Factual causation consists of applying the 'but for' test. Factual Causation Introduction to Causation Both factual and legal causation are general requirements for delictual liability and are applicable in principle to. 63 of 2001, Rules for the Conduct of Proceedings before the CCMA, Protection of Personal Information Act 2013, Electronic Communications and Transactions Act No. 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.’”). The above approach was embraced in International Shipping Co (Pty) Ltd v Bentley 1990 (1) Close this message to accept cookies or find out how to manage your cookie settings. The test for factual causation is the sine qua non ( or “but for” ) test. Applying the sine qua non test, the SCA declined to draw the inference. If it would, that conduct is not the cause of the harm. 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. The but-for test is often used to determine actual causation. Remoteness of damage: A majority of the Constitutional Court disagreed, with specific reference to the substitution exercise called for by the sine qua non test in the case of omissions. 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. Cameron J, having conducted an analysis of some foreign judgments dealing with Focusing on individual cases, however, could cause one to lose sight of the rules and, more importantly, the policies in this area. ⇒ See, for example, the cases of R v Dyson and R v White. Causation - law of delict. 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. 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. University. 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 … The traditional approach to factual causation seeks to determine whether the injury would have happened even if the defendant had taken care. law of delict. This uses the 'but for' test. Product Liability In Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984(2) SA 888 (A) Corbett JA said 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. 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. 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. The two-tiered test: Factual causation and legal causation. Barnett v Chelsea & Kensington Hospital 1 QB 428 The ''but for'' test and ''proximate cause'' test are used to determine causation. 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. The basic test for establishing causation is the "but-for" test in which the defendant will be liable only if the claimant’s damage would not have occurred "but for" his negligence. The traditional approach to factual causation seeks to determine whether the injury would have happened even if the defendant had taken care. 3. Factual Causation Tort law uses a ‘but for’ test in order to establish a factual link between the conduct of the defendant and the injuries of the claimant. It does not have to be established as a scientific fact that such affirmative, lawful conduct would definitely (or not ) have made a difference. We looked closely, in Chapter 9, at some factual and proximate causation issues in contributory negligence cases. Medical Malpractice Causation in Criminal Liability: This refers to whether or not the defendant's conduct caused the harm or damage. The ''but for'' test and ''proximate cause'' test are used to determine causation. Factual causation: the 'but for' test . 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. The law does not require proof equivalent to a control sample in scientific investigation. Factual causation is the starting point and consists of applying the 'but for' test. ( 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. Each cause had equal 20% probability of being the cause therefore on the balance of probabilities, cannot find factual causation. 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. Factual causation must be established on the balance of probabilities. 6. In other words, the question asked is ‘but for the defendant’s actions, would the harm have occurred?’ our courts however have not advanced the conditio sine qua non theory as an exclusive test for factual causation ( there may be exceptions where the theory does not give a satisfactory answer The causation prong subdivides further into factual and proximate causation. Causation Practical Law UK Glossary 4-107-5865 (Approx. test is and how it works: i.e. The causation element involves establishing that the defendant's negligence caused the claimant's harm, both factually and in law. Factual causation is the starting point and consists of applying the 'but for' test. How do you determine actual causation?First of all, you have to ask what actual causation is: “ The but-for test is a test commonly used in both tort law and criminal law to determine actual 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. But in this analytic framework in which a second test has been excogitated in order to paper ovm the deficiencies of … Factual causation is the second element of causation discussed above. 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. 1181, 1237 (2003). Causation - law of delict. If so, a causal link is established; but if not, there is none. Among the elements that the plaintiff suing for negligence will have to prove is that the defendants violation of a duty was the actual and proximate cause of his or her injuries. Sign in Register; Hide. One thing certain in life is death. For establishing the doctrine of causation, one must investigate into ‘factual causation’ and ‘legal causation’, thereby convicting anyone of legal liability. The test for factual causation is the sine qua non (or “but for”) test. 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. ?but for D?s action, would C?s loss still have occurred?'. whether any novus actus interveniens? 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. In most cases, factual causation alone will be enough to establish causation. He or she will also have to prove duty, breach of duty, and damages. The long accepted test of factual causation is the ‘but-for’ test. There is a test namely ‘but for’ test. The conventional approach to causation in negligence is the "but for" test, decided on the balance of probabilities. [58] What was required, if the substitution exercise was indeed appropriate to determine factual causation, was to determine hypothetically what the responsible authorities ought to have done to prevent potential TB infection, and to ask whether that conduct had a better chance of preventing infection than the conditions which actually existed during Mr Lee’s incarceration. University of Pretoria. The test asks, "but for the existence of X, would Y have occurred?" Remoteness refers to the legal test of causation which is used when determining types of loss caused by a breach of contract or duty which can be compensated by the award of damages.There is a difference between legal causation and factual causation because of that question arises whether damages resulted from breach of contract or duty. The long accepted test of factual causation is the ‘but-for’ test. To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant. In Lee v Minister of Correctional Services 2013(2) SA 144 (CC) the question arose whether The factual test of causation. (25 of 2002), The Promotion of Equality and Prevention of Unfair Discrimination Act 2000, (PEPUDA or the Equality Act Act No. Of the numerous tests used to determine causation, the but-for test is considered to be one of the weaker ones. 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. Situations of causal factual uncertainty are relatively common in law. Intervening Cause: 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 … This is often referred to as the chain of causation. Course. One asks whether the claimant’s harm would have occurred in any event without, (that is but-for) the defendant’s conduct. 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'). However, in some circumstances it will also be necessary to consider legal causation. SA 680 (A), where Corbett CJ, writing for the full Court, said the following at 700 E: “As has previously been pointed out by this Court, in the law of delict causation involves two distinct enquiries. The notion of “cause in fact” becomes difficult to apply in the case of omission. This process of mental elimination may be applied with complete logic to a straightforward positive act which is wholly unlawful. The but-for test is a test commonly used in both tort law and criminal law to determine actual causation.. In other words, in order to apply the but-for test one would have to substitute a hypothetical positive course of conduct for the actual positive course of conduct.”. One asks whether the claimant’s harm would have occurred in any event without, (that is but-for) the defendant’s conduct. This is sometimes called ‘legal causation’. 27× 27. 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. The factual test of causation. Causation: factual causation and legal causation. The so-called “but for” test is used as a preliminary filter. Establishing Factual Causation. Road Accident Fund Claims This is the starting point on finding causation. Factual causation is the unbroken sequence of events that results in an outcome being caused by one or more (in)actions. There must be a factual determination as to whether the defendant's actions caused the claimant's harm. However, in some circumstances … The question is entirely one of fact. (See generally Minister of Police v Skosana 1977 (1) SA 31 (A) at 34E – 35A, 43E – 44B; Standard Bank of South Africa Ltd v Coetsee 1981 (1) SA 1131 (A) at 1138H – 1139C; S v Daniëls en ‘n Ander 1983 (3) SA 275 (A) at 331B – 332A; Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) [701] SA 888 (A) at 914F – 915H; S v Mokgethi en Andere, a recent and hitherto unreported judgment of this Court, at pp 18 – 24.)”. 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. This article will look into how this test for factual causation (‘but for’ test… The hornbooks and casebooks offer abstract causation rules that sometimes fall short of explaining the outcomes of particular cases. If it would, that conduct is not the cause of the harm. This is often referred to as the chain of causation. In most instances, where there exist no complicating factors, factual causation on its own will suffice to establish causation. If it would, that conduct is not the cause of the harm. Factual Causation. Factual causation: the 'but for' test There must be a factual determination as to whether the defendant's actions caused the claimant's harm. ( 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. Causation in criminal liability is divided into factual causation and legal causation. Factual causation is the starting point and consists of applying the 'but for' test. If the answer is in the … If yes, the defendant is not liable. 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. In an effort to resolve this dilemma, I have articulated rules in this chapter at a high level of detail, with an emphasis on functional justifications. law of delict. Law of delict (DLR 320) Academic year. Legal and factual causation relates to whether or not the the defendant's act or omission i.e. Check if you have access via personal or institutional login, Full liability beyond defendant indeterminacy, An Analysis of the State of the Art in the Era of New Technologies, ‘Causation in negligence: what is a material contribution?’, Damage: Factual causation and scope of liability, Theoretical Foundations of Strict Liability. The but-for test is satisfied only if the defendant's negligence is a necessary condition for the injury. So but for the defendants actions, would the criminal consequence still occur. It is not a matter of adducing evidence, as the Supreme Court of Appeal appears to have found. Hospital Negligence The first is a factual one and relates to the question as to whether the defendant’s wrongful act was a cause of the plaintiff’s loss. Causation refers to the enquiry as to whether the defendant's conduct (or omission) caused the harm or damage. The so-called “but for” test is used as a preliminary filter. The 'but for' test. Proximate Causation: A cause that is legally sufficient to result in liability. way, such that it becomes true that the injury would not have occurred but for the relevant tortfeasor’s action. If the answer is yes then this may enable D?s action to be eliminated from the list of possible causes. Where is the 'but for' test found? But for D's conduct/omission, would the victim have died? Email your librarian or administrator to recommend adding this book to your organisation's collection. 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. This is basically a juridical problem in the solution of which considerations of policy may play a part. 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. Causation and Counterfactual Baselines, 40 San Diego L. Rev. 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? 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. 3. A. Causation: The causing or producing of an effect. 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. Cameron J, having conducted an analysis of some foreign judgments dealing with If a person factually causes the death of another, then it is clear that they criminally caused their death. 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. But in this analytic framework in which a second test has been excogitated in order to paper ovm the deficiencies of … 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 account is a capacious one, as it accords causal status to a wide range of legally irrelevan… 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. It must be established in all result crimes. If the answer is in the … 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 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. 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. Personal Injury , Medical Malpractice and Labour Law, Malcolm Lyons and Brivik Inc. are leading Attorneys in South Africa specialising in:  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. This chapter examines factual causation doctrine in isolation and derives some rules for navigating this most intractable part of tort law. The student feels pressure, at some point, to either stick to the rules, in the hope of finding reasonable guidance, or try to understand the decisions on a case-by-case basis. 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. 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. 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. 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. University of Pretoria. They have also needed to determine the meaning of ‘loss’. The long accepted test of factual causation is the ‘but-for’ test. Substitution and elimination in applying the but-for test are no more than a mental evaluative tool to assess the evidence on record. The basic test for establishing causation is the "but-for" test in which the defendant will be liable only if the claimant’s damage would not have occurred "but for" his negligence. To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant. ⇒ Factual causation is established by applying the 'but for' test. The test for factual causation is the sine qua non ( or “but for” ) test. Causation must be established in all result crimes. If yes, the defendant is not liable. 4 of 2000). 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. test for factual causation. There are many decisions in which judges seem to make special exceptions to the abstract rules. 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. Unsurprisingly, the courts do not accept this reasoning. FACTUAL CAUSATION Jane Stapleton* ... (2000) 416: 'the substantial factor test is not so much a test as an incantation'. It is not always easy to draw the line between a positive act and an omission, but in any event there are cases involving a positive act where the application of the but-for rule requires the hypothetical substitution of a lawful course of conduct (cf Prof A M Honoré in 11 International Encyclopaedia of Comparative Law c 7 at 74 – 6). A sufficient policy rationale is that if such a defense were accepted, tort law would unravel. The enquiry as to factual causation is generally conducted by applying the so-called ‘but-for’ test, which is designed to determine whether a postulated cause can be identified as a causa sine qua non of the loss in question. Begin by setting out what the ?but for? Medical Negligence Establishing Factual Causation. This should not be regarded as an inflexible rule. 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 before inquiring into legal causation, perhaps by … One asks whether the claimant’s harm would have occurred in any event without, (that is but-for) the defendant’s conduct. The ‘but-for’ test is generally employed as the basic test for causation in fact. 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. It simply has to be established whether the probable outcome would have been different from that which actually 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 it would in any event have ensued, then the wrongful conduct was not a cause of the plaintiff’s loss; aliter, if it would not so have ensued. 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. Sign in Register; Hide. Law of delict (DLR 320) Academic year. 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. This has been referred to as ‘factual causation’. Labour Law Factual causation must be established on the balance of probabilities. 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