Category Archives: Causation

Andrew Summers, ‘Common-Sense Causation in the Law’

Abstract Judges often invoke ‘common sense’ when deciding questions of legal causation. I draw on empirical evidence to refine the common-sense theory of legal causation developed by Hart and Honoré in Causation in the Law. I show that the two main common-sense principles that Hart and Honoré identified are empirically well founded; I also show […]

Joseph Page, Review of Causation in European Tort Law (Infantino and Zervogianni eds)

“The disarming yet deceptively complex topic of causation in tort law has long fascinated scholars in North America. It also provides a formidable challenge that the ‘Common Core of European Private Law’ publishing project has now confronted as part of its ambitious endeavor to identify and analyze the commonalities and divergences that characterize European private […]

Hillel Bavli, ‘Counterfactual Causation in Tort Law’

Abstract The counterfactual, or ‘but for’, model of causation is pervasive in tort law for proving factual causation. It asks whether the harm suffered by the plaintiff would have occurred in the absence of the defendant’s misconduct. In one category of cases, however, the but-for model is said to fail: cases involving multiple sufficient causes […]

MacKenzie and Wood, ‘Common-Sense Causation: How a Robust and Pragmatic Application of the “But For” Test Can Solve the Circular Causation Problem in Cases of Multiple Contributing Tortfeasors’

Abstract The authors consider the application of the ‘but for’ test for causation in complex multiple tortfeasor cases, and argue that to the extent the test appears unworkable, the problem is not the test but its overly strict, granular application. The ‘but for’ test is intended as a helpful proxy or a convenient tool to […]

SH Bailey, ‘“Material contribution” after Williams v The Bermuda Hospitals Board

Abstract This paper reviews the status of the principle that a claimant can demonstrate a causal link between the defendant’s wrongful act or omission and his or her damage by establishing that the act/omission made a ‘material contribution’ to the damage. This principle has been reviewed, in the context of cumulative causes that cannot be […]

Gemma Turton, ‘Informed Consent to Medical Treatment Post-Montgomery: Causation and Coincidence’

Abstract If a patient suffers physical harm during medical treatment when a risk materialises which the doctor failed to warn the patient about, there are two key issues when a negligence claim is brought by the patient. First, it must be shown that the doctor was negligent in failing to warn the patient about the […]

Maria Cuellar, ‘Causal Reasoning and Data Analysis in the Law: Definition, Estimation, and Usage of the Probability of Causation’

Abstract Researchers often need to determine whether a specific exposure, or something else, caused an individual’s outcome. To answer questions of causality in which the exposure and outcome have already been observed, researchers have suggested estimating the probability of causation (PC). However, authors disagree about the proper definitions and identification strategies for PC, and current […]

‘Justifying Liability without Proof of Causation’

Emmanuel Voyiakis, Causation and Opportunity in Tort, 38 Oxford Journal of Legal Studies 26 (2018). In ‘Causation and Opportunity in Tort’, Emmanuel Voyiakis offers a thought-provoking analysis of some of the field’s classic causation problems. His focus is upon situations where the crux of the causal difficulty is epistemic – for some reason or other, […]

Keren-Paz and Wright, ‘Liability for Mass Sexual Abuse’

Abstract When harm is caused to victims by multiple injurers, difficult issues arise in determining causation of, legal responsibility for, and allocation of liability for those harms. Nowhere is this more true than in child pornography and sex trafficking cases, in which individuals have been victimized over extended periods of time by hundreds or even […]

‘“Causal potency” and contributory negligence’

“A lot could be said on causation as it relates to contributory negligence, but in this post I will restrict myself to commenting briefly on two fairly recent cases. The first is the Supreme Court’s decision in Jackson v Murray [2015] UKSC 5. The facts were (in short) that on a winter’s evening, a thirteen-year-old […]