Inferring Causation: Risks, 'Common Experience' and Social Facts"

When determining causation in tort law, courts often infer causal links between a defendant’s negligence and a plaintiff’s injury, even where there is only limited evidence. This article considers the principles that govern the process of drawing inferences and their application in Australian law. Causal inferences are triggered by the defendant’s conduct that significantly increases the risk of precisely the type of harm to the plaintiff that occurred, absent other plausible causal explanations for the plaintiff’s harm. Importantly, however, courts have repeatedly substantiated causal inferences based on the ‘course of common experience’, ‘common sense’, etc. As Kylie Burns demonstrates, it is important to examine judicial statements about how the world operates (‘social facts’), especially when unsupported by evidence. Although reliance on unsupported assumptions may be problematic in some contexts, this article demonstrates that social facts in causation cases usually concern day-to-day matters and do not necessarily reflect social biases.