- Though it is often (wrongly) thought to be self-evident, factual causation in pure economic loss cases is often complex. It requires at least as much attention as the question of breach
- Proper pre-trial preparation frequently determines the outcome of proceedings. No trial counsel briefed in any case, no matter how good, can overcome the absence of critical evidence, or adverse inferences flowing from late evidence
- Having identified what to prove, plaintiffs should lead evidence of relevant and corroborative contemporary materials, objective facts and the apparent logic of alternative-course decision-making if they desire to maximise their prospects of success on factual causation.
There are two commonly recurring errors committed by plaintiffs relating to factual causation in pure economic loss cases: a failure to identify what facts to prove; and a failure to lead persuasive evidence to prove them. Whilst a necessary element in a plaintiff’s litigious battle is proof of breach, winning that battle does not automatically result in an award of damages (or other relief) in a pure economic loss case. Plaintiffs must also prove that an established breach caused the loss alleged.
Causation in pure economic loss cases is often given superficial if any attention, perhaps because causation is (wrongly) thought to be self-evident. Sometimes one sees cases where the plaintiff’s factual causation case is nothing more than evidence of breach and evidence that the plaintiff ended up in a poor economic position, but without proof of the necessary factual link between the two.
Factual causation, the “but for” test, is an issue of fact, the onus for which always lies on the plaintiff. Factual causation in pure economic loss cases is often complex. It requires at least as much attention as the question of breach.