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Causation Notes

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This is an extract of our Causation document, which we sell as part of our Torts B Notes collection written by the top tier of Monash University students.

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Causation P bears the burden of proving factual and legal causation (that D's acts contributed in a real or material way to the harm to P) on the balance of probabilities (OBP) (WA s 52).

1. Proof by inference (that the circumstances give rise to an inference that is more probable than not) is acceptable to courts here (Holloway v McFeeters).
[Note each type of harm to P] Each must be considered separately to decide if there is causation.

Factual causation To prove factual causation, the negligence must have been a necessary condition of the occurrence of the harm (WA s 51(1)(b)). This requires application of the 'but for' test: there will be factual causation if, OBP, the P's injury would not have occurred but for the D's breach of DOC (Barnett v Chelsea &
Kensington Hospital).

1. Evidence of what P would subjectively have done if not for D's negligence will be considered by the court if relevant (WA s 51(3)) a. Concerns what P (not a reasonable person) would subjectively have done. i. Chappel v Hart: court accepted that P would have delayed the operation and avoided harm

2. The 'but for' test is insufficient alone and must be applied using common sense and value judgments (March v Stramare).

3. Where the link between D's negligence and the harm to P is limited to D's act putting P into the spatial and temporal position where P encounters the hazard, D's negligence is not a legal cause of the injury (Chappel v Hart, March v Stramare).
[Note prima facie result under the but for test]

However, if there are multiple sufficient causes, such that the test is not satisfied, the court may nevertheless impose responsibility for factual causation on D where appropriate (WA s 51(2)).

1. The court may decide factual causation is proven if D's negligence materially contributes to P's harm but cannot be shown to have been a necessary condition of its occurrence (Strong v Woolworths).

[Note if appropriate eg if two people caused a death together]
Increased risk

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