At its very heart, causation in fact is all about policy and not law
“At its very heart, causation in fact is all about policy and not law”.
Critically evaluate this statement with reference to decided cases.
1515 words
An issue with causation arises usually when we encounter different factors that brought about the same damage. We need to establish which of these factors is legally relevant in order to determine liability. Causation is a difficult topic in tort law because there is no simple formula or test that can ascertain whether a certain act or event is the legally or factually relevant cause of the damage. Social policy as well as logic are both founding elements for causation though this often proves problematic because it renders determining which act or event is the relevant cause of damage from a universal perspective. The law attempts to resolve these issues by putting in place certain tests depending on the nature of the circumstances. However, the law’s approach can equally be criticised because these tests can be used in most but not all cases. The “but for” test is often the first test employed by the courts in order to establish causation. An example of its successful utilisation is found in Barnett v Chelsea and Kensington Hospital . Through the “but for” test, it was shown that the watchman who died from arsenic poisoning would have died, if not later, even with the intervention of the doctor on duty at the defendant hospital. Therefore, the question would the watchman have died but for the negligence of the doctor of the defendant hospital is answered negatively. Although this test is the simplest test and should be tried first before any others, it cannot solve all problems. This test does not function well when there are issues with scientific uncertainty (hence the introduction of tests such as the Wilshire test and the Fairchild test). However, if we look at the Fairchild test, we can see that the holding for the plaintiff to be able to sue both defendants is grounded in public policy
Critically evaluate this statement with reference to decided cases.
1515 words
An issue with causation arises usually when we encounter different factors that brought about the same damage. We need to establish which of these factors is legally relevant in order to determine liability. Causation is a difficult topic in tort law because there is no simple formula or test that can ascertain whether a certain act or event is the legally or factually relevant cause of the damage. Social policy as well as logic are both founding elements for causation though this often proves problematic because it renders determining which act or event is the relevant cause of damage from a universal perspective. The law attempts to resolve these issues by putting in place certain tests depending on the nature of the circumstances. However, the law’s approach can equally be criticised because these tests can be used in most but not all cases. The “but for” test is often the first test employed by the courts in order to establish causation. An example of its successful utilisation is found in Barnett v Chelsea and Kensington Hospital . Through the “but for” test, it was shown that the watchman who died from arsenic poisoning would have died, if not later, even with the intervention of the doctor on duty at the defendant hospital. Therefore, the question would the watchman have died but for the negligence of the doctor of the defendant hospital is answered negatively. Although this test is the simplest test and should be tried first before any others, it cannot solve all problems. This test does not function well when there are issues with scientific uncertainty (hence the introduction of tests such as the Wilshire test and the Fairchild test). However, if we look at the Fairchild test, we can see that the holding for the plaintiff to be able to sue both defendants is grounded in public policy