To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant. Factual causation must be established on the balance of probabilities. Labour Law University. Close this message to accept cookies or find out how to manage your cookie settings. However, in some circumstances … 3. 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. The first case summaries involve questions of factual causation, which usually requires an application of the ‘but-for’ test. 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. Product Liability Causation and Counterfactual Baselines, 40 San Diego L. Rev. This is shown by the case of R v White. [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. The law does not require proof equivalent to a control sample in scientific investigation. 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 courts use a “but-for” test to determine the answer to this question. Personal Injury , Medical Malpractice and Labour Law, Malcolm Lyons and Brivik Inc. are leading Attorneys in South Africa specialising in: The but-for test is often used to determine actual causation. 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 Lee v Minister of Correctional Services 2013(2) SA 144 (CC) the question arose whether 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). The hornbooks and casebooks offer abstract causation rules that sometimes fall short of explaining the outcomes of particular cases. 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. A’s car rear ends B’s car, resulting in damage to the back end of B’s car. This is known as the but-for test: Causation can be established if the injury would nothave happened but forthe defendant's negligence. It does not have to be established as a scientific fact that such affirmative, lawful conduct would definitely (or not ) have made a difference. University. 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. We looked closely, in Chapter 9, at some factual and proximate causation issues in contributory negligence cases. Third Party Claims The 'but for' test. 2016/2017. Medical Negligence Factual causation is the starting point and consists of applying the 'but for' test. 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