Case analysis: Inferring Necessary Conditions: The Enduring Paradox of the 'But For' Test in Factual Causation

Marco Rizzi, Amy Thomasson

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Abstract

The Court of Appeal of Western Australia engaged with the issue of factual causation recently in East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) (‘Ellis’). Quinlan CJ, Mitchell and Beech JJA took the opportunity to reaffirm the arguably paradoxical proposition that, in a situation of structural scientific uncertainty, it is possible to infer a causal link on the balance of probabilities in order to demonstrate that the breach is a ‘necessary condition’ of the harm per s 5C(1)(a).
This commentary sketches the facts and main findings of the Court in Ellis to highlight this paradox and call for a revision of what is a largely obsolescent provision.
Original languageEnglish
Pages (from-to)461-475
JournalUWA Law Review
Volume49
Issue number1
Publication statusPublished - 2022

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