Causation

Question 1

How does the but for test determine causation in general?

Answer 1

It asks but for the negligent conduct, would the same result have ensued. It involves substituting a counter-factual for the negligent conduct.

Question 2

Why is the but for test called that?

Answer 2

We are asking the question “but-for” the negligent conduct would the result have ensued.

Question 3

What else is the but for test called?

Answer 3

Condition sine quo non

Question 4

What were the facts of Minister of Police v Skosana

Answer 4

The plaintiff’s husband (H) had driven his car off the road into a ditch while drunk. The police took H and locked him in a cell overnight. The next morning, he was experiencing sever abdominal pain. The police delayed in taking him to the doctor (1hr30) and they delayed again in taking him to the hospital. The ambulance only took him to the hospital 2 hours later. He died four hours after arriving at the hospital he died while being operated on.

Question 5

Why did Corbett JA (for the majority) and Viljoen AJA (dissenting) disagree about whether the two duty constables had caused H’s death by their negligence?

Answer 5

disagreed on the outcome of the but/for test

Question 6

Why did Trollip AJA (for the majority) and Corbett JA (dissenting) disagree about whether the bank manager’s misstatement had caused the plaintiff’s loss

Answer 6

disagreed on how the test should be applied to the facts

Question 7

According to the but for test, event X was a cause of event Y if and only if, had event X not occurred, event Y would not have occurred either.

Answer 7

true

Question 8

According to the but for test, for event X to have been a cause of event Y, it is both a sufficient and necessary condition that, had event X not occurred, event Y would not have occurred either.

Answer 8

true

Question 9

According to the but for test, event X was caused by event Y if, had event X not occurred, event Y would not have occurred either.

Answer 9

false

Question 10

It is entailed by the but for test that, for X to have been a cause of Y, it has to be the case that, had X not occurred, Y would not have occurred.

Answer 10

true

Question 11

It is entailed by the but for test that X was a cause of Y if it is the case that, had X not occurred, Y would not have occurred.

Answer 11

true

Question 12

According to the but for test, event X was a cause of event Y if and only if, but for the occurrence of event Y, event X would not have occurred.

Answer 12

false

Question 13

According to the but for test, event X was caused by event Y if and only if the occurrence of event X was a necessary condition for the occurrence of event Y.

Answer 13

false

Question 14

According to the but for test, event X was a cause of event Y if and only if the occurrence of event X was a necessary condition for the occurrence of event Y.

Answer 14

true

Question 15

According to the but for test, event X was a cause of event Y if and only if the occurrence of event X was a sufficient condition for the occurrence of event Y.

Answer 15

false, must be necessary

Question 16

According to the but for test, for event X to have been a cause of event Y, it is both a sufficient and necessary condition that the occurrence of event X was a necessary condition for the occurrence of event Y.

Answer 16

true

Question 17

According to the but for test, for event X to have been a cause of event Y, it is both a sufficient and necessary condition that the occurrence of event X was a sufficient condition for the occurrence of event Y.

Answer 17

false

Question 18

In respect of the example below, it is true that D’s conduct was negligent and true that D’s conduct was a cause of P’s harm, but it is false that D’s negligent conduct was a cause of P’s harm and thus also false that D can be held liable for P’s harm:

D rides her Harley Davidson down a city road at 113 km/h. Without warning, P steps into the road and is injured by the impact of D’s motorbike. It was negligent for D to have ridden faster than 50 km/h. It would not have been negligent for D to have ridden at 50 km/h or slower. Had D not ridden down the road, P would not have been injured at all. However, even if D had ridden at only 50 km/h, P would still have been injured by the impact of the motorbike.

Answer 18

true

Question 19

In respect of the example below, it is true that Dr D’s conduct was negligent and true that Dr D’s conduct was a cause of patient P’s death, but it is false that Dr D’s negligent conduct was a cause of patient P’s death and thus also false that Dr D can be held liable (to patient P’s dependants) for patient P’s death:

Dr D administers 60 ml of a drug to patient P in order to combat a life-threatening condition. P nonetheless dies of the condition. It was negligent for Dr D to have administered less than 100 ml of the drug to P. Dr D would have acted without negligence, had he administered 100 to 150 ml of the drug to P. Had Dr D administered 100 to 150 ml of the drug to P, P would still have been alive (as P’s condition would have been successfully managed). However, had Dr D administered 80 to 90 ml of the drug to P, P would have died of the condition in any event.

Answer 19

false

Question 20

What result does the but for test yield in an example like the one below, why does it yield that result, and why is that result widely believed to be problematic?

While A, B and C are travelling together through a desert, A negligently puts a lethal and fast-acting poison, for which there is no antidote, into their tank of water. Before any of them has taken a drink of the poisoned water, B negligently allows the tank to run empty. Several days later C, who is the least robust of the three, dies of thirst. A and B survive long enough to be rescued.

Answer 20

This is called pre-emptive causation. No one is liable. This seems wrong. It correctly denies that A is the cause of C’s death, but incorrectly denies that B is not the cause of C’s death.

Question 21

What result does the but for test yield in an example like the one below, why does it yield that result, and why is that result widely believed to be problematic?

With the aim of lighting a cigarette, smoker A negligently strikes a match in the gas-filled basement of C’s house. So, at exactly the same moment, does smoker B. The house blows up.

Answer 21

It is duplicate causation or over-determination. This is wrong because the but-for test here incorrectly denies that A and B are the cause of the harm. i.e neither A nor B are the cause of the harm in terms of the but-for test.

Question 22

Why is the NESS test called that and how does it differ from the but for test?

Answer 22

X is a cause of Y, if an only if, X is a necessary element in a sufficient set of conditions for Y.
This test results in both A and B above being the cause of death

Question 23

What result does the NESS test yield in the example below, why does it yield that result, and how does that result differ from the result which the but for test would yield?

Laboratory technician A negligently puts a lethal and fast-acting poison, for which there is no antidote, into laboratory technician C’s tea. After C has drunk the poisoned tea but before the poison has been absorbed into C’s bloodstream, laboratory technician B negligently electrocutes C.

Answer 23

A is not the cause of the harm, but B is the cause of the harm.

Question 24

True or False
The but for test is widely believed to yield the wrong result in the example below because, since Hunter A’s shot was sufficient for C’s death, it was not necessary. But, since Hunter B’s shot also was sufficient for C’s death, it was not necessary either. This yields the result that both Hunter A’s and Hunter B’s shots were causes of C’s death.
Hunter A, while attempting to shoot an elephant, negligently shoots C. So, at exactly the same moment, does hunter B. Hunter A’s bullet destroys C’s brain. Hunter B’s bullet destroys C’s heart. C dies.

Answer 24

False

Question 25

T/F
The but for test is widely believed to yield the right result in the example below because, since A’s conduct was sufficient for C’s death, B’s conduct was not sufficient. But, since B’s conduct was not sufficient for C’s death, A’s conduct was necessary. This yields the result that A’s (but not B’s) conduct was a cause of C’s death.
Laboratory technician A negligently puts a lethal and fast-acting poison, for which there is no antidote, into laboratory technician C’s tea. After C has drunk the poisoned tea but before the poison has been absorbed into C’s bloodstream, laboratory technician B negligently electrocutes C.

Answer 25

false

Question 26

T/F

Fagan, Aquilian Liability, endorses, as an improvement, the new evidentiary standard which the CC majority in Lee v Minister of Correctional Services applied

Answer 26

False

Question 27

The NESS test is claimed, by its proponents, to yield the right result in the example below because it is possible both to posit a set of actual conditions which is sufficient for the occurrence of the explosion, and wherein A’s lighting his match is a necessary element, and to posit a set of actual conditions which is sufficient for the occurrence of the explosion, and wherein B’s lighting his match is a necessary element. Application of the NESS test to this example therefore yields the result that the explosion was caused both by A and by B.
With the aim of lighting a cigarette, smoker A negligently strikes a match in the gas-filled basement of C’s house. So, at exactly the same moment, does smoker B. The house blows up.

Answer 27

true

Question 28

In the example below, the ‘probability standard’ (i.e., the evidentiary standard produced by combining the but for test with the normal burden of proof in civil cases) yields the result that none of factories A, B and C can be shown, on a balance of probabilities, to have caused D’s disease:

Factories A, B, and C successively employ worker D. Each factory negligently exposes D to the risk of contracting some disease, by having him work in an area in which he inhales air containing fibres of a particular kind of substance, any one of which fibres is capable of triggering the disease. The duration of D’s employment and his work conditions are identical in each case. So, therefore, is the degree of risk to which he is exposed by each of A, B and C. Some time after his retirement, D does contract the disease in question. It is certain that it was triggered by one, but only one, of the many fibres to which D was exposed during his employment by A, B and C. But it is impossible to determine, in any way, whether it was a fibre which he inhaled while working at factory A, or factory B, or factory C. In respect of each of A, B and C, the probability therefore is only 33% that, but for its negligence, the harm to D would not have occurred.

Answer 28

true you need 51%