Causation as an Element of the Composition of the Offence in Private-Legal Relations
Authors: Kaduk Olha 
Published: August 2022

In this article the author analyzes causation with the emphasis on tort relations. Nevertheless, causation is a fundamental concept that is applicable to all areas of law, especially causation in tort relations in Ukraine is the least examined issue.The basic conceptions of causation were overlooked, in particular the “but for” test and “conditio sine gua non” which establish that causation exists only in the case act or omission is a necessary antecedent for the concrete consequences. To fulfill the requirement of causation existence between the act or omission and the consequence, such causation should be direct. However, whether the causation is direct or not in tort cases is often left to judicial activism. So the main objective of this article is to specify certain instruments which can be used to establish the existence of causation. Moreover, there are certain burdensome obstacles that complicate this objective, such as when the consequences of the unlawful act or omission are unpredictable, when causation is interrupted by the act or omission of a third independent decision-maker or when there are multiple causes, which could lead to a particular consequence. Thereby, to reach that goal many approaches used in various jurisdictions were analyzed. Firstly, the predictability principle in the contract law settled in Hadley v. Baxendale and analogues of this principle in tort law were examined. Secondly, the dependence of the presence of a causation on the nature of consequence was analyzed with the reference to the case Jolley v. Sutton LBC. Thirdly, the difficulty of establishing causation in cases when causation is interrupted by the act or omission of independent decision-maker was managed to be addressed by means of analyzing the case of European Court of Justice Kone AG and Others v. ÖBB-Infrastruktur AG. Fourthly, “materially contributing cause”, developed in Athey v. Leonati was studied in context of multiple causation. To establish the existence of causation, the factor of predictability can be used, i.e. in the current situation, the reasonable bystander, who would be in the same circumstances as the offender, would have to anticipate the occurrence of the corresponding consequences. That is why, the consequences should not be “specific” or unpredictable.In case of multiple causes, the approaches to address the issue of causation differ significantly. For example, in the Anglo-Saxon legal family in case of multiple causes, it is sufficient to prove that one of them had greater impact on the occurrence of negative consequences than the others. Whereas in the practice of national courts, it is necessary to prove that one cause directly and indirectly affected the occurrence of a negative consequence and that in the case of multiple causes of a causal link, there is no causation.Thus, in cases where it is difficult to establish a causal link, it is necessary to use the principles developed by both the national practice and the practice of other jurisdictions. Neglecting such principles in establishing causation can lead to a violation of legal certainty and the rule of law in general.