Explaining causation of injury-an Australian case study: An Australian case study over time

Abstract

Legal and medical causation of injuries are not necessarily the same thing. This can become problematic when medical experts are called upon to comment on “causation” of injuries. Does this question relate to “legal causation” or “medical causation,” and what does causation even mean? Causation (the legal kind) is an active and developing area of the law with considerable judicial comment in the highest courts of Australia. The judgments being handed down are at the very least a new nuance on the old tests. The concept of proof of causation is being reviewed, refreshed, and finessed. Plaintiffs must prove “causation” to succeed in a liability claim against a Defendant. Gaps in scientific or factual details of the cause may prevent a Plaintiff from establishing the link between a Defendant’s breach and the Plaintiff’s injury. If that link cannot be proven, then, at law, the claim must fail. Courts are less willing to plug gaps in scientific or factual knowledge than they once were. This chapter explains causation from a legal perspective and provides an understanding of what lawyers are interested in when they question causation. Experts are often asked questions such as “whether the alleged injuries were caused by the accident.” This chapter looks behind the assumptions in that question to allow consideration and determination of what is really being asked.