David Hamer, ‘”Factual causation” and “scope of liability”: What’s the difference?’

According to a dominant view, for the negligent defendant to be held liable for the plaintiff’s harm the plaintiff must establish first, that the breach was the ‘factual cause’ of the harm, and second, that the harm is within the ‘scope of liability’. On this view, factual causation is purely factual, while scope of liability is normative and non-causal. This article accepts the basic two-step approach, but argues that the distinction is overstated. A close analysis of the principles shows that factual causation may require value judgment, and that scope of liability often involves an assessment of the strength and nature of the causal connection between breach and harm

David Hamer, ‘Factual causation’ and ‘scope of liability’: What’s the difference?. Modern Law Review, Volume 77, Issue 2, pages 155–188, March 2014, DOI: 10.1111/1468-2230.12063. Article first published online: 3 MAR 2014.

First posted 2014-03-04 07:16:55

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