Category Archives: Causation
Christine Carter, ‘Statistical Methodologies and the Treatment of Risk in Industrial Disease Disputes’
ABSTRACT Workers are often exposed to hazardous industrial contaminants in the course of their employment and go on to develop serious diseases. Yet, when bringing claims in negligence, they face significant challenges in proving a causal relationship between the harm suffered and the employer’s breach of duty. These challenges arise from the methodological gaps between […]
Jose Alberro, ‘Counterfactuals and Causal Identification in Legal Damages’
ABSTRACT The but-for question, what would have happened absent the defendant’s wrong? sits at the center of compensatory damages across every legal system. This paper argues that damages practice has a problem with that question not at the level of estimation, where most of the debate is focused, but at the prior levels of defining […]
Seth Drewien, ‘Actual Causation in Overdetermined Harm: A Structural Framework for the Cases the But-For Test Cannot Solve’
ABSTRACT The but-for test for actual causation in tort law fails in a well-documented and practically significant class of cases: those involving overdetermination, where multiple sufficient causes operate simultaneously, and preemption, where one sufficient cause overtakes another before it operates. Courts have responded with two doctrines – the substantial factor test and market share liability […]
Ovčak and Božič Penko, ‘The Role of the Psychiatric Expert In Tort Litigation’
ABSTRACT The paper analyses the evidentiary function of psychiatric expertise in tort proceedings, emphasizing its significance within Slovenian contractual and non-contractual liability regimes. Psychiatric experts are essential in establishing causation and assessing the extent of non-pecuniary damage, thereby shaping judicial determinations of fault and compensation. Effective adjudication requires reciprocal legal-medical literacy: judges should understand the […]
Barbara von Tigerstrom, ‘Informed Consent, Causation, and the “Reasonable Patient”’
ABSTRACT In medical negligence claims involving ‘informed consent’, claimants must prove that a physician failed in their duty to provide adequate information, and that this failure caused the patient’s injury. In Canada, unlike in Australia or the UK, the common law has adopted a ‘modified objective’ test to analyze the decision component of causation in […]
Lauren Hund, ‘Moving from Medical Risk to Medicolegal Causation: An Exemplar from Stroke tPA Litigation’
ABSTRACT While medical experts often opine about causation in medical malpractice lawsuits, mapping the medical literature onto the probabilistic ‘more likely than not’ legal causation standard sometimes goes beyond medical expertise. In many medical malpractice applications, experts cannot utilize the logic of differential etiology and general and specific causation that are common in toxic tort […]
Ahson Azmat, ‘When Motive Matters: Formal Causation in the Law’
ABSTRACT When motive matters in determining a defendant’s liability – when their reasons for action mark the difference between permitted and forbidden employment decisions, or school admissions procedures, or coverage for medical services – the Supreme Court has recently reaffirmed the so-called ‘traditional’ model of but-for causation. This model conceives of causation and intention as […]
Benjamin Teng, ‘Loss Counterfactuals’
ABSTRACT Private law uses counterfactual reasoning to determine if loss – for which compensatory damages may be awarded – has been suffered because of a wrong: is the claimant in a worse position than it would have been in without the wrong? Counterfactual reasoning is, therefore, an essential part of private law. Yet, it is […]
Petra Minnerop, ‘Climate Causality: From Causation to Attribution’
ABSTRACT Climate law and governance structures evolve through different instruments, in international, regional and domestic law and policy. A significant mode of development is jurisprudential. Courts often make authoritative statements not only about the law on climate change but also about the underlying scientific evidence. At the heart of this growing field of climate jurisprudence […]
Weiming Tan, ‘Account of profits in dishonest assistance, the “equal rigour” principle, and the retreat from “status”’
INTRODUCTION In a recent book chapter, Lord Briggs confessed ‘to a feeling of considerable disquiet’ about the law regarding an account of profits against dishonest assistants as set out by the Court of Appeal in Novoship (UK) Ltd v Nikitin. Although permission to appeal in Novoship was refused back in 2014, the judicial and scholarly […]