Causation: Define causation

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In order for a court to hold that negligence has occurred, and a person or company is liable several elements must be proven. One of these is causation. The general understanding is that there must be a causal link between the claimant's loss and the negligent behaviour of the defendant. To order to proper define and investigate whether one of the elements exist we will define causation as the following

“Causation is defined as the loss or damage which must be caused by the wrongful culpable act. There must be a nexus or link between the act commission or omission and the loss or damage suffered. Where the crucial link is missing the so called wrong doer cannot be held liable in delict. The the problem can be further limited by the fact that the wrong doer will only be held liable if (firstly)his conduct which(secondly) caused the (thirdly) damage or injury was at the same time also wrongful and culpable(the other 2 elements of the delict)” (NAGEL, 2006 p33) Omission liability which is the liability for not doing an act required by law is defined as noncausal( (Causation - Role Of Causation In The Criminal Law) A defendant who omits to do an act the law requires him to do is not liable for having caused the harm that the act omitted would have prevented; rather, he is liable for not preventing the harm (Moore, 1993, pp. 267–278). To assess whether a defendant is liable for an omission to prevent some harm, a causal judgment is still necessary: we have to know that no act of the defendant prevented any such harm. If some act of the defendant did cause the absence of a certain harm, then the defendant cannot be said to have omitted to have prevented the harm (Causation - Role Of Causation In The Criminal Law)
Discuss legal and factual causation They are 2 kinds of causation which are both linked to each other and are both needed in order to determine whether there is link to the damage or loss suffered Factual causation can be explained as if not for the action committed the outcome would not have naturally occurred. It determines exactly what happened and whether someone was responsible for the event or whether it would have occurred anyway.For example if you had not knocked an exposed open flame lamp a fire would not have started. In this instance if the appropriate road signs were made available and the trench covered up for public safety then peter would not have ended up in the trench peter. It is essence the causal link between act and result or the condition sine qua non

test.

Legal causation- after determining the factual causation we must now try to determine whether the law is involved in the action for example if they was no law in regarding starting a fire then in this case the defendant would not have any legal responsibility to bind him or for any cause for the defendant to be held legally responsible. Legal causation can therefore be defined as “ involving policy considerations based on reasonableness and fairness that the act qualifies as direct cause of the result, and that no other event independently of the act of the accused interfered with the result in order to impute legal liability”. (law 24, 2010)

To explain the test to be applied for factual causation

A test known as condito sine qua non or “but for test” according to an article on the website for the people this test used to decide, “but for the action” the outcome would not have happened. “The test for factual causation is very strict; no matter how flagrant the breach of duty, the case will be thrown out if the claimant would have endured the same damages had the breach not happened”. (Morgan and Morgan For the people) In our case had the proper construction notices been up and if the exposed trench had been safe for public safety by way of covering it would peter still suffer damage or loss.

To indicate what type of causation is present and apply to the factual scenario

The causation present here is omission on the part of the city council in erecting proper road signage and covering the trench to make it safe for public use. A similar case known as the Cape Town Municipality v Bakkerud-case had seen the municipality neglect to cover two potholes that resulted in two women stumbling into them although in their case it was for a longer period. The facts remain as follows the nexus or link is the municipality omitted to cover the trench and erect proper signage this forming the link between the act and the damage that peter suffered as a result. The condito sine qua non test for factual causation would once again prove causation. That in both cases a source of danger was created and had they not omitted it and their legal obligation to provide adequate safety, the accidents would not have happened.
Causation - Role Of Causation In The Criminal Law. (n.d.). Retrieved August 16, 2010, from http://law.jrank.org/pages/623/Causation-Role-causation-in-criminallaw.html: <a href="http://law.jrank.org/pages/623/Causation-Role-causation-incriminal-law.html">Causation - Role Of Causation In The Criminal Law</a> law 24. (2010, august 16 ). Retrieved August 16, 2010, from http://www.law24.com/understand-your-legal-issue/law-for-the-layman. Morgan and Morgan For the people. (n.d.). Retrieved August 16, 2010, from http://www.forthepeople.com/factual_causation.htm: http://www.forthepeople.com/factual_causation.htm

NAGEL, C. (2006). Commercial Law . In A. B.-K. CJ Nagel, Commercial Law third edition. Johannesburg: Lexisnexis group.

LEBOGANG MZWIMBI 21373698

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