Chris Miller, ‘Causation in personal injury after (and before) Sienkiewicz

Three forms of ‘material contribution’ are discussed within the context of the traditional ‘but for’ test of causation. The NESS test (Necessary Element in at least one Sufficient Set) is shown to offer a more appropriate approach when causal over-determination is present as in, for instance, Fairchild and other cases involving multiple sources of asbestos. The particular problems posed by the recent Sienkiewicz case are then examined. It is argued that removing the incoherence in the common law of causation in personal injury will require the judiciary to overcome its antipathy to statistical evidence.

Chris Miller, ‘Causation in personal injury after (and before) Sienkiewicz‘. Legal Studies, Volume 32, Issue 3, pages 396–420, September 2012.

First posted 2012-08-23 09:51:49

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