Category Archives: Causation
Lynda Butler, ‘Property, Climate Change and Accountability’
ABSTRACT Western-style property systems developed in a world where resources were abundant relative to human population and resource use. Those conditions shaped the assumptions, norms, and principles driving the property systems. Today technological advances have greatly increased resource use, leading to unexpected long-term costs. Allowing property systems to operate virtually without restraint has undermined the […]
Wamuyu, Odote and Anyango, ‘Compensating Toxic Torts in Kenya: Overcoming the Causation Dilemma’
ABSTRACT Environmental degradation is at unprecedented level in the world. One of the common causes of environmental degradation is pollution which as a consequence leaves contaminants in the environment. The contaminants in the environment cause many diseases to human beings therefore compromising the ability of the environment to support a healthy life. Appropriate legal mechanisms […]
Feroze Gadekar Brailsford, ‘Foreseeable Sea-level Rise and Climate Change Causation: A Discussion of Tort Law’s Role in Providing Relief and Attributing Liability for Climate Change-Induced Harms’
ABSTRACT Aotearoa’s public law accountability mechanisms are insufficient and poorly placed to prevent and provide relief from climate change-induced harms. By contrast, tort law is well-placed and well-suited to addressing the damage to private property and personal interests. This paper discusses the challenges faced by public nuisance and negligence in providing accountability and relief. The […]
Kenny Chng, ‘Conceptualising A Role for The Common Law in Environmental Protection in Singapore’
ABSTRACT In Singapore, the key institutions driving environmental protection are the legislature and the executive. The judiciary’s role in environmental protection has thus far been relatively minor. By drawing upon environmental law theory and comparative analysis of other common law jurisdictions, this article explores avenues through which the common law can be engaged more meaningfully […]
Dembroff and Kohler-Hausmann, ‘Supreme Confusion about Causality at the Supreme Court’
ABSTRACT Twice in the 2020 term, in Bostock and Comcast, the Supreme Court doubled down on the reasoning of ‘but-for causation’ to interpret antidiscrimination statutes. According to this reasoning, an outcome is discriminatory because of some status – say, sex or race – just in case the outcome would not have occurred ‘but-for’ the plaintiff’s […]
Henry Cooney, ‘Causation and Contributory Negligence: The Use and Misuse of Causal Concepts in Cases of Misleading Conduct’
ABSTRACT The nature of liability for loss caused by misleading conduct has changed in recent years. A field previously dominated by tort, the last few decades have seen the emergence of statutory causes of action created by legislative schemes proscribing a variety of forms of misleading conduct. In both tort and in cases of statutory […]
‘Third Party Violence at Work: The Problem of Causation – Cunningham v Rochdale MBC [2021] EWCA Civ 1719′
“On 19 November 2021 the Court of Appeal handed down judgment in an important decision on an employer’s liability claim for damages for personal injury suffered by an Assistant Head Teacher who was assaulted by a pupil. Dingemans LJ gave the sole reasoned judgment, with which Andrews and Arnold LJJ agreed, dismissing the Claimant’s appeal […]
Wnukiewicz-Kozłowska and Drozdowska, ‘Causal Effect Relationship in Medical Cases. An Old Problem in a New Scenario. Commentary to CJEU Judgment (Second Chamber) of 21 June 2017, NW and Others v Sanofi Pasteur MSD and Others, Case C-621/15, EU:C:2017:484. Approbative Gloss’
ABSTRACT This commentary evaluates the problem in assessing the role of a causal connection between damage and the use of a defective medical product, specifically a vaccine. The judgment of the Court of Justice of the European Union (CJEU) in the Sanofi Pasteur Case, which allowed the possibility of recognizing damage claims, even in cases […]
Richard Ausness, ‘Causation and Apportionment Issues in Opioid Litigation’
.. Part II examines the origins of the current opioid epidemic and the litigation that has resulted from it. Part II identifies the various approaches to the issue of cause-in-fact, including the traditional ‘but for’ test, the Second Restatement’s substantial factor test and the Third Restatement’s necessary element of a sufficient set (NESS) test. It […]
‘The (Rebuttable) Presumption of Honesty’
“On 7 October 2021, Mrs Justice Falk’s decision in Brearley and Others v Higgs and Co (a firm) [2021] EWHC 2635 (Ch) was handed down. This was a solicitor’s negligence claim in which the defendant firm of solicitors was represented by Michael Pooles QC of Hailsham Chambers. The claim related to an opportunity to develop […]