Causality and the law

Abstract

For the law, determinations of causation in all forms of litigation are crucial for the resolution of disputation. The circumstances of particular cases impose a context that individualises the examination of whether a particular factor or set of factors have brought about a particular result (see Stapleton, 2009; Stapleton, 2002). The question to be answered by the courts is not abstract or theoretical. It is framed by the context. For the parties in dispute the stakes in respect of a forensic determination of causation, as against a determination of association, correlation or influence, can be high. Whether exposure of the plaintiff to a carcinogenic or teratogenic substance by a defendant caused disease or death plays a substantial part in determining whether there can be civil recovery against the defendant. Whether the negligence of an employer caused economic or psychiatric harm to a plaintiff will be a required component of a plaintiff’s damages claim. Whether a consequence of setting fire to trees was the death of a person within a nearby house is likely to be a determinative component in criminal charges of murder, manslaughter or endangering life. Whether a failure to attend to the care of a patient caused or had the foreseeable potential to cause death is likely to be an important part of disciplinary proceedings against a medical practitioner. Whether a failure to adhere to cordon and contain policies caused police to shoot dead a suspect they were called upon to apprehend may be part of a coroner’s findings about the circumstances and cause of the death of a deceased person. Whether the conduct of parents caused foreseeable harm to a child may determine custody and access arrangements ordered by a family court in the aftermath of a marriage. The law is binary in the sense that courts are required to determine whether initiating or moving parties in litigation have proved their case on the basis of the evidence adduced. Proving the nexus between a wrongful act and its consequences needs to be established beyond reasonable doubt in criminal prosecutions. If it is not proved, the prosecution does not succeed – there will be a finding that the