Category Archives: Causation
Voyiakis, ‘Two justifications of McGhee’
INTRODUCTION Under the normal standard, claimants in a negligence suit bear the burden of proving causation on the balance of probabilities. In McGhee v National Coal Board, the House of Lords held that the normal standard has an exception. In this short note, I want to discuss two very different arguments for justifying the exceptional […]
Wright, ‘Dialogues on Causation with Puppe’
ABSTRACT This paper describes the contemporaneous development of the thoughts and writings of me and Ingeborg Puppe, the leading German scholar on causation in the law, beginning independently in the 1980s and subsequently, after learning of each other’s work, through numerous communications and recent joint publications. We agree on the most important things: e.g., the […]
‘New Judgment: Hastings v Finsbury Orthopaedics Ltd and another (Scotland) [2022] UKSC 19′
“This appeal is unusual in that the legal issues concerning the application of the CPA are largely agreed. The basic principles may be summarised as follows. The CPA (and the EU directive which it implemented) have introduced a system of no-fault liability in respect of defective products. The test of whether a product is defective […]
Causation Conference: Perth, Australia, and Online, 9 September 2022
We are pleased to welcome you to the 2022 Causation Conference, sponsored by Herbert Smith Freehills. the Australian Academy of Law and The University of Western Australia Law School. Causation is one of the basic pillars of the law. Yet its nature, operation and relationship to other foundational concepts remains uncertain and contested, across virtually […]
Sara Golru, ‘The Extrapolation Dilemma: Toxicological Evidence and Toxic Torts’
ABSTRACT Toxicological evidence has been a controversial method of proving causation in toxic tort litigation. This article maintains that toxicological evidence can provide probative proof of the causal relationship between chemical exposure and development of disease. Although this evidence certainly has its weaknesses, it is nevertheless a valuable means of establishing or refuting causation when […]
Sara Golru, ‘Court-Ordered Genetic Testing: The Defendant’s Right to Examine the Plaintiff’s Genome?’
ABSTRACT This article provides an original analysis of the small but growing number of Australian and United States (‘US’) personal injury cases where defendants have sought to compel genetic testing of plaintiffs in order to identify potential alternative causes of their injury. It finds that, despite the concerns of some scholars, courts continue to show […]
Chang Wen Yee and Joel Soon, ‘Doomed to die? Causation in medical negligence’
“When lawyers research and prepare for trial, it is often tempting to search for and select favourable statistical evidence in support of their arguments. However, the Singapore Court of Appeal decision in Foo Chee Boon Edward v Seto Wei Ming (Seto) serves as an important reminder that courts would not be persuaded by mere dint […]
‘Proving Things 233: Assessing Evidence After 14 Years: The Cruel Concept Of Causation In Medical Negligence’
“This blog has looked many times at issues relating to witness evidence and the judicial approach when hearing evidence of matters that happened a considerable time before trial. The difficulties are made clear in the judgment of HHJ Emma Kelly in Richins v Birmingham Women’s and Children’s NHS Foundation Trust [2022] EWHC 847 (QB). This […]
Robert Rhee, ‘Probabilistic Causation in the Loss of Chance Doctrine: A Comment on Efficiency and Error Mitigation’
ABSTRACT The loss of chance doctrine in tort law solves a recurring problem in the context of medical malpractice in which severely ill patients are misdiagnosed or mistreated. Absent a theory permitting probabilistic recovery, traditional factual causation inquiry always results in the finding of no causation in individual cases. But we know as a matter […]
Sandra Sperino, ‘The Causation Canon’
ABSTRACT It is rare to witness the birth of a canon of statutory interpretation. In the past decade, the Supreme Court created a new canon – the causation canon. When a statute uses any causal language, the Court will assume that Congress meant to require the plaintiff to establish ‘but for’ cause. This Article is […]