Causation is a commonsense matter not a philosophical

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Causation is a matter of fact not law. Causation is a commonsense matter not a philosophical or scientific thing. Causation is used to assign responsibility. ‘But for’ test - Factual Causation Did the defendant’s negligence in fact cause the plaintiff’s injury? – Causation question requires the following test: 1. Would the plaintiff’s injury not have occurred but for the defendant’s breach of duty? 2. The defendant’s breach of duty does not have to be only cause of the plaintiff’s loss. WA s51(3) - If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances. Rules out reasonable person test. Subjective test Surrounding circumstances taken into account In practice causation is relevant in medical negligence cases 21
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WA s51(3) - In determining … whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider … whether or not and why responsibility for the harm should be imposed on the negligent party. Makes it clear that but for test is not only test to be used Court must consider ‘whether and why’ responsibility should be placed on D Problems with ‘but for’ test 1. Too broad : not all necessary conditions of an event are legally relevant ( but for P being born) 2. Too narrow : e.g. “multiple sufficient causes” Multiples Sufficient Causes Eg: Driver hit by car and has a stroke at the same time. Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428 Haber v Walker [1963] VR 339 (CB 305) Inc reased Risk as a Cause Where the exact cause of P’s injury cannot be known, is it enough if D’s breach of duty increased the risk of the injury occurring? EG: Asbestos exposure on multiple occasions only on e of which is due to the D. It is unknown which exposure caused the disease only that the risk was increased. McGhee v National Coal Board [1972] 3 All ER 1008 (CB 311) Facts: P contracts dermatitis due to being exposed to brick dust in the course of employment. - Clear that a D.o.C exists. - Breach consisted of not providing showers for employees to use after work. - It needs to be shown that the dermatitis was caused due to the dust on the P during the drive home. - Risk was shown to have increased. - HOL held that increased risk was enough to make out causation. Chappel v Hart (1998) 72 ALJR 1344 especially Kirby J 1367-8 22
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Facts: D is a specialist ENT. Failed to warn P that operation could harm her voice. Voice was impaired. - D argued that it was necessary operation and it would make no difference to the P. - P said if info was provided, P would seek out best possible surgeon.
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