May 17, 2017 Articles

Causation Analysis—How to Avoid a Missing Link When Proving Construction Damages or Delay

A judge or jury will typically be more inclined to find the cause-and-effect link more plausible when a cogent presentation is made using project records, such as daily reports and project photographs

by Paul Ficca and Peter Vosbikian

The foundation of a claim or request for equitable adjustment is rooted in three categories of proofs: liability, causation, and damage. Liability is the contractual entitlement to recover for an issue. Causation is the cause-and-effect relationship between an action or inaction by a party on the issue under investigation and the resultant injury or impact to another. Damage is the quantification of impact to the injured party resulting from the cause-and-effect connection on an issue. The failure to establish any one of these three proofs can have a fatal result when pursuing a claim. Within the context of construction claims, quantifying damages and analyzing delays have been the topic of many white papers, studies, and articles. Establishing causation, on the other hand, has not experienced as much consideration and is oftentimes viewed as a more imprecise and unstructured procedure. Without prescribing strict adherence to a particular method for proving causation, this article provides some useful considerations that may be helpful when explaining the cause-and-effect relationship, which could make the difference between winning or losing your case.

In establishing causation, it’s helpful to understand the burden of proof required. Construction disputes are civil matters, and for that reason, courts require that causation be established by proving by a preponderance of evidence, as opposed to the beyond a reasonable doubt standard, which requires a more severe test. Notwithstanding the lesser preponderance of evidence threshold, the much-faced challenge in establishing causation is not presenting sufficient evidence to a trier of fact with a well-supported explanation.

Premium Content For:
  • Litigation Section
Join - Now