Category Archives: Causation
‘Known Unknowns: Legal Responses To Intractable Factual Uncertainties’
“In arguments relating to General Stanwix’s Case, heard in the English Court of Chancery in 1772, one lawyer posed the following question: ‘Do not facts, in their very nature, precede laws? Is it not to them the creation and necessity of laws are owing? … If laws, therefore, were made for facts, and not facts […]
Peter Bach‐y‐Rita, ‘The Causal Mechanism Theory of Legal Causation’
ABSTRACT Theories of legal causation that identify the concept with probability‐raising generate false positives where the defendant’s conduct raises the probability of harm but brings about that harm in the wrong kind of way. Moreover, what the law seeks to deter is not conduct that raises the probability of harm, but rather conduct that is […]
Henry Cooney, ‘Misleading Conduct, Reliance and Market-Based Causation’
ABSTRACT Recent Australian decisions have opened the door to the possibility of liability premised on a ‘market-based’ theory of causation. This article is concerned to explore this emerging category of claims, particularly when founded upon an allegation of misleading or deceptive conduct. Specifically, this article is concerned to examine the nature of market-based causation and […]
Felipe Jiménez, ‘Some Doubts about Folk Jurisprudence: The Case of Proximate Cause’
ABSTRACT This Essay offers a critique of ‘folk jurisprudence’. Folk jurisprudence is the focus on folk understandings as a means to determine the content of the concept of law and of legal concepts. Folk jurisprudence is characteristic of some (though not all) forms of both ‘armchair’ analytic philosophy and experimental jurisprudence. Folk jurisprudence gets many […]
Mims and Crisler, ‘Properly Limiting the Lost Chance Doctrine in Medical Malpractice Cases: A Practitioners’ Rejoinder’
ABSTRACT In this rejoinder, written from the perspective of two defense practitioners, the authors respond to recent calls to relax the ‘loss of a chance of survival’ doctrine in Louisiana. The authors argue that such attempts to relax the doctrine are flawed because they would significantly relax the plaintiff’s burden to prove causation, allowing plaintiffs […]
Maytal Gilboa, ‘Multiple Reasonable Behaviors Cases: The Problem of Causal Underdetermination in Tort Law’
ABSTRACT This article introduces a significant yet largely overlooked problem in the law of torts: causal underdetermination. This problem occurs when the causal inquiry of a but-for test produces not one but two results, which are contradictory. According to the first the negligent defendant is the likely cause of the plaintiff’s injury, whereas according to […]
Marcus Roberts, ‘Causation and Reliance in New Zealand Negligence Cases’
ABSTRACT There have been a number of interesting judgments over the last two years concerning liability for negligent misstatements resulting in economic loss. This part of the seminar will look at decisions from the Supreme Court, the Court of Appeal and the High Court focusing in particular on the question of when a duty of […]
‘Causation in Occupational Cancer Claims: An Overview’
“The law adopts a nuanced approach to causation in occupational cancer claims. Practitioners dealing with such claims must be alive to the distinctions and difficulties that may arise in this area. This post provides an overview of the application of the different tests for causation, when they apply and their practical implications on case preparation […]
Ewan McGaughey, ‘Liability for climate damage and shipping’
ABSTRACT How can the global shipping industry play its part in the fight to stop climate damage? Shipping accounts for around 90% of all international trade, and for 2.5% to 4% of all global greenhouse gas emissions, which damage the Earth’s climate. The shipping industry is also heavily concentrated. The top four European firms alone […]
‘What Happened, Before Applying Standard of Care’
“Negligence is determined by a standard of care that a relevant prudent person would undertake, rather than the results that such a theoretical person would seek to attain or avoid. Although Canada initially inherited the reasonable person standard from England in Vaughn v Menlove, 1837 132 ER 490, it has developed significantly since that time. […]