Negligence: causation

Introduction to causation

Factual causation: but for test

Factual causation: alternatives to but for test

Legal causation
Introduction to causation

The defendant’s breach must be the cause of the claimant’s loss. Both factual and legal
causation need to be considered.
Loss or damage

Duty

Breach

Causation

Remoteness

Defences
Factual causation: but for test

Loss or damage

Duty

Breach

Causation

Remoteness

Defences
 'But for' the
negligent act / No Factual causation
omission, would is established
the claimant have
suffered the loss?
Yes
Uncertain
<50%
How likely is it that
Yes the injury would Was the breach a
Is the case one of Not possible
have occurred as a 'more than
cumulative
result of the non- to say negligible' cause of
causes?
tortious cause in the injury?
any event?
No >=50% No
Factual causation
not established (eg
Wilsher), unless
another exception
applies (see later Factual causation
in this element) is not established
 'But for' the
negligent act / No Factual causation
omission, would is established
the claimant have
suffered the loss?
Yes
Uncertain
<50%
How likely is it that
Yes the injury would Was the tort a
Is the case one of Not possible
have occurred as a 'more than
cumulative
result of the non- to say negligible' cause of
causes?
tortious cause in the injury?
any event?
No >=50% No

Did the tortious act Nothe Fairchild

/ omission Yes Consider whether
/ McGhee or loss of chance
materially exceptions should apply
increase the risk Factual causation
of the injury? is not established
No
Multiple sufficient causes: summary of case law
Case
Performance Cars v Abraham
Baker v Willoughby
Jobling v Associated Dairies
Summary Additional Comments
Second defendant not liable if
they have not caused any
additional damage.
Two tortious events. The second event could also
be a novus actus interveniens
First defendant liable for initial in the claimant’s claim against
injuries past the point of second the first defendant (see the
event. legal causation element of
Adapt).
Second defendant (if found)
liable for additional losses.
Tort followed by a natural event. The second event could also
be a novus actus interveniens
First defendant liable for damage in the claimant’s claim against
up to the natural event. the defendant (see the legal
causation element of Adapt).
Legal causation

There are three types of intervening or novus actus events to consider

Acts of God or Acts of third Acts of the

natural events parties claimant
 Negligence: causation

Introduction to causation

Factual causation: but for test

Factual causation: alternatives to but for test

Legal causation