Tort claims—causation as a matter of fact
Produced in partnership with Laurence Page of Gatehouse Chambers

The following Dispute Resolution practice note produced in partnership with Laurence Page of Gatehouse Chambers provides comprehensive and up to date legal information covering:

  • Tort claims—causation as a matter of fact
  • What amounts to factual causation—the 'but for' test
  • Evidencing the 'but for' test
  • Factual causation—special circumstances of scientific uncertainty
  • Single tortfeasor cases
  • Multiple tortfeasors
  • Recovering for loss of a chance in tort claims

Tort claims—causation as a matter of fact

In most torts, where a defendant breaches its duty towards the claimant, it is only liable if the claimant can establish that the breach in question has resulted in some harm, ie causation.

Only strict liability torts are exempt from this rule (eg trespass to the person).

There are two elements to establishing causation in respect of tort claims, with the claimant required to demonstrate that:

  1. the defendant’s breach, in fact, resulted in the damage complained of (factual causation) and

  2. this damage should, as a matter of law, be recoverable from the defendant (legal causation)

The claimant has the burden of establishing each of the above two factors.

This Practice Note considers the factual element of the causation test.

For guidance on the issues relevant in determining whether or not, as a matter of law, there is sufficient causation, see Practice Note: Tort claims—causation in law.

What amounts to factual causation—the 'but for' test

Establishing factual causation requires the claimant to produce evidence that it is more likely than not that the defendant’s breach resulted in the damage complained of (Bonnington).

The starting point for a claimant in most cases is to prove in the affirmative that the claimant would have been unlikely to suffer loss ‘but for’ the defendant’s breach of duty. For example, in Barnett, a patient was negligently not treated promptly and sent

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