In tort, it must be established that the tortious conduct of the defendant caused or contributed substantially to the damage suffered by the plaintiff before the plaintiff could be held liable for that damage. In determining actual causation, courts apply the same “but for” test used in criminal cases: “Would the plaintiff`s injury have occurred but for the defendant`s tortious conduct (Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428)? However, this assessment is insufficient for cases of simultaneous or cumulative causes where the actions of two or more perpetrators are sufficient to cause the damage. If there is more than one possible cause, several tests can be applied. For example, the negligence of the defendant significantly increases the risk of harm (McGhee v National Coal Board [1973] 1 WLR 1)? Was the defendant`s breach of duty also a significant cause of the damage? One in five grounds is not sufficient to establish liability (Wilsher/Essex Area Health Authority, 1988, AC 1074). For causation to be established on a balance of probabilities, there must be at least a 51% probability that the defendant`s actions caused the damage (Hotson v East Berkshire Health Authority [1987] AC 750). In general, there are actually four types of problems with the counterfactual causation test that are addressed in the legal literature. The first of these problems concerns evidence and evidence. As prima facie evidence, the causal link must indeed be proved by the party bearing the burden of proof. (2) Legal causation: The defendant`s action must be an operational and substantial cause of consequence.
His act does not necessarily have to be the sole cause, but must make a substantial and non-trivial (de minimis non curat lex) contribution to the result. For example, if a doctor takes a blood sample from a patient who has been stabbed and dies, the blood sample will weaken the patient, but the physician`s role in the patient`s death is minimal and causally insignificant. Legal theory, like philosophy, has its share of causal skeptics. Much of this legal skepticism has focused on the immediate cause of half of the traditional two-part definition of causality of the law. As we will see in a moment, such skepticism views “immediate cause” as a misnomer and reinterprets the immediate cause requirement in non-causal political terms. More radical is the skepticism considered here. Some legal theorists are skeptical of the existence of a natural relationship in the world named after “causality.” This skepticism includes what the law calls the “cause of fact” as well as the “immediate cause.” However, an alternative view of legal ends reduces law to the metaphysics of causality. According to this view, criminal law serves the value of retaliatory justice, just as tort law serves the value of corrective justice.
Retributive justice requires that those who cause culpable harm be punished and deprived; Corrective justice requires that those who have wronged others correct that injustice by compensating that other. In both cases, service to these types of justice requires that the “cause” as used in the rules of legal liability not be identified as anything other than that with which it is identified in these theories of justice.