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Causation can be a slippery concept, difficult to define in a way that works satisfactorily in all situations. It will help to remember that we are discussing causation in a legal sense, rather than in a scientific or philosophical sense. The courts treat causation as a question of fact, to be determined by taking account of common sense, experience, policy and value judgments.
State and territory legislation now sets out the principles to be applied to decide whether the necessary causal link exists between the defendant's conduct and the harm suffered by the plaintiff. The principles are consistent with those established by the courts.
See, for example, section 5D Civil Liability Act 2002 (NSW).
This section says that a determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation'), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused. Section 5E places the onus on the plaintiff of proving, on the balance of probabilities, any fact relevant to the issue of causation.
See section 5E Civil Liability Act 2002 (NSW).
The examples on the following screens illustrate what considerations arise in different circumstances when deciding whether a defendant has caused harm.
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