LDEL3714- Unit 6 & 7 Notes.docx - LDEL3714 SUMMARIES UNIT 6 CAUSATION 6.1 FACTUAL CAUSATION 1.Distinguish between factual and legal causation

LDEL3714- Unit 6 & 7 Notes.docx - LDEL3714 SUMMARIES...

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6.1 FACTUAL CAUSATION: 1.Distinguish between factual and legal causation: Factual Causation Legal Causation 1. There is a factual causal nexus between the act and the harmful consequence . (did the defendant's conduct cause harm?) 1. Determining which harmful consequences is caused by the wrongdoer's wrongful, culpable act he should be held liable for. (For which of the damages caused by his or her (wrongful and culpable) should the wrongdoer be held liable?) 2. Est. liability. 2. Limits the liability. 2. Explain the conditio sine qua non theory, and illustrate its operation by applying it to an example where positive conduct is involved: AKA the 'but for' test.
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According to this test, an act is the cause of a result if the act cannot be thought away without the result disappearing simultaneously. The act must in other words be conditio sine quo non of the result. The condition without which the result would not follow. Not only a factual test but also legal test because the law adopts it and the approach sometimes differs from the approach followed by medical science. In the case of positive conduct on the part of the defendant, the conduct must be ‘removed’ in the mind to determine whether the relevant consequences would still have resulted. Only a test for factual causation. EXAMPLE: In order to determine whether X was a cause of Y X must be removed mentally and consider whther Y still exists or not. If Y falls away when eliminating X; X is the cause of Y. If Y still exists when eliminating X; Y is not caused by X. 3. Explain the criticism levelled against the conditio sine qua non theory:
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a) The condition sine qua non theory is based on a clumsy, indirect process of thought that results in circular logic. b) The condition sine quo non test fails completely in cases of so-called cumulative causation. EXAMPLE: X and Y simultaneously, but independently fire a fatal shot to Z's head. If X's shot is eliminated the death of Z is not eliminated; which means that X did not cause Z's death. ALSO, if Y's shot is eliminated the death of Z is not eliminated; which means that Y also did not cause Z's death. Which comes to the absurd conclusion that neither Y nor X caused the death of Z. c) The condition sine quo non test is in fact not a test of causation, because it is merely an ex post facto way of expressing a predetermined causal nexus. EXAMPLE: X visits Y to accuse him of aldultery with his wife. Y offers X a beer and after drinking the beer X suffers from convulsions and dies. How would the condition sine quo non test be used to establish wheteher the beer was poisoned by Y.
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4. Can the conditio sine qua non test be applied in case of an omission? Refer to relevant case law and the view of Neethling et al.
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  • Winter '16
  • Carey Robertson
  • Causality

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