Henry Cooney, ‘Factual Causation in Cases of Market-Based Causation’

ABSTRACT
Causation serves as a requirement for the imposition of liability in a multitude of private law contexts. Recently, when dealing with requirements of causation imposed by statutory schemes proscribing misleading or deceptive conduct, Australian courts have considered the possibility of a plaintiff arguing a ‘market-based’ theory of causation. This article aims to explore and clarify the factual causation enquiry in a case of market-based causation. Particular attention is given to the appropriate test of causation in a case of market-based causation. This article argues that, when considering whether a plaintiff’s loss was caused by a defendant’s conduct through a market-based causal chain, the appropriate test of causation is the ‘a factor’ test. In doing so, this article challenges the approach taken in recent cases involving market-based causation and misleading or deceptive conduct.

Cooney, Henry, Factual Causation in Cases of Market-Based Causation (April 3, 2021) (2021) 27(1) Torts Law Journal 51.

First posted 2021-09-15 12:00:27

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