What role if any does common sense play
as a factor in the court’s determination of causation?
Law is involved with the application of causation, found by way of both judicial decisions and statute. Causation is a critical step in the analysis of liability; the plaintiff must show some link between the damage suffered and the defendant’s conduct. Debate concerning causation goes back 2000 years and many philosophers have sought to ascribe reasons for departures from normal conditions and were concerned with defining a cause outside of the law. The originator was Plato, whose ideas were quickly continued by Aristotle who related causation with explanation. This tradition continued for thousands of years right up to Hume who provided empirical answers to the definition question, and Kant who provided more metaphysical answers. Present day support is found for both Hume and Kant.
When statutes and judicial decision formulate rules of law attributing responsibility for harm, the word ‘cause’ is often used. Even when not used, however, what is often still implied is the notion of a causal connection between the defendant and the harm. In Australia, causation continues to fascinate legal scholars.
In order to prove responsibility, it must be established that the harm was brought about by the defendant’s negligence in order for the law to find liability. Causation, therefore, is fundamental to legal enquiry. Although some areas of law have features of strict liability, for example vicarious liability of employers for employees, other areas seek to ascertain liability by applying legal tests to show the defendant to be the cause. However, to cause harm to another is not a sufficient condition of legal responsibility. The case may be that although a causally relevant condition, it did not cause the outcome. For a person to be legally responsible if it required that the conduct should be of the sort that the law designates as unlawful, for example negligent...