Factual' and 'Legal' Causation in Construction and Infrastructure Law: A thorny subject

Nicholas Baatz QC

November 2016

A paper based on talks given in London on 6th October 2015, Bristol on 15th October 2015 and Manchester on 22nd February 2016

This paper challenges three commonly suggested propositions as to causation: that of legal analysis as attributing liability independently of factual causation, that of legal causation as being a matter of common sense and that of there being no grand overall theory of causation. Nicholas Baatz examines legal and philosophical approaches to causation focusing on some construction and infrastructure cases and suggests that there may be merit in using philosophical notions of causation to assist with legal analysis.

Introduction - The construction context: why analysing loss and its causation matters - Is legal causation distinct from, and independent of, factual causation? - Legal causation involves 'common sense' but 'common sense' as an explanation is not always a sufficient or satisfactory explanation. In this respect causation is no different from any other legal analysis - There is no grand theory capable of distillation from the case law but it can be said that factual causation and legal (normative or policy based) causation are both necessary to establish liability and neither is alone sufficient - Conclusion.

The author: Nicholas Baatz QC is a barrister practising at Atkin Chambers, London: nbaatz@atkinchambers.com.

Text: 24 pages