Alternative Approaches to Factual Causation in Cases Involving Gradual-Onset Psychiatric Diseases in the Workplace
Journal of Contemporary Roman-Dutch Law, Vol. 73, p. 531, 2010
22 Pages Posted: 5 Aug 2011
Date Written: August 5, 2010
The law often requires that we make definitive pronouncements, even in the absence of definitive proof. Standards and burdens of proof have been developed to take into account this reality, but in an increasingly technical and complicated world, our approach to determining causes has to change. In cases of workplace psychiatric harm, both the law of delict and workers’ compensation law require a relationship between the impugned act of the wrongdoer or the occupational disease, on the one hand, and the harm suffered by the victim on the other. In the law of delict this inquiry has traditionally been divided into “factual causation” and “legal causation” and this distinction remains relevant in workers’ compensation law. While legal causation is concerned with the question of limiting liability by assessing and making value judgments as to whether liability should be imputed to a defendant, factual causation can negate liability, but is not in itself sufficient to found liability. It is therefore an exclusionary test, “allowing a court to weed out defendants without having to decide whether their conduct was legally culpable”. The article focuses on factual causation, particularly in cases of gradual-onset psychiatric harm in an occupational setting.
Keywords: Factual causation, gradual-onset psychiatric diseases
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