Category Archives: Causation

Michael Pratt, ‘What Would the Defendant Have Done But for the Wrong?’

ABSTRACT Suppose a defendant owed the claimant a duty that it could have discharged by taking any one of several different measures. It took none, violating the duty. When assessing damages, how should the court determine which measure the defendant would have taken had it not committed the wrong? I explain how this peculiar counterfactual […]

‘Legal Theory Lexicon: Causation’

“Causation is one of the basic conceptual tools of legal analysis. And for most purposes, we can get along with a notion of causation that is both vague and ambiguous. In the world of medium sized physical objects (automobiles, pedestrians, etc), our judgments about causation rarely depend on conceptual niceties. The driver’s negligence caused the […]

Joanna Manning, ‘Oh What an Unholy Mesh! Diamond v Royal Devon and Exeter NHS Foundation Trust [2019] EWCA Civ 585′

ABSTRACT In Diamond v Royal Devon and Exeter NHS Foundation Trust [2019] EWCA Civ 585, the Court of Appeal mistakenly applied the wrong test to the issue of the causal link between the surgeon’s failure to disclose material information and her physical injury. Even had that test been correct, its application to the facts was […]

Tasneem Haradasa, ‘Causation in Section 15 of the Property (Relationships) Act 1976: Analysing the New Zealand Supreme Court’s “Working Assumption” – Is It Really Working?’

ABSTRACT Scott v Williams concerned s 15 of the Property (Relationships) Act 1976. In situations of significant economic disparity post-separation, s 15 empowers courts to depart from the default rule of equal division of relationship property to compensate the disadvantaged partner. Causation is one of the jurisdictional hurdles. Only disparity ‘because of’ the division of […]

‘Scope of Duty and Causation: Chester v Afshar revisited’

In these episodes we bring the highlights from the recent 1COR seminar – ‘Scope of Duty and Causation: Chester v Afshar revisited’. We hear from Jonathan Metzer as he gives his interpretation of the case. Then Dominic Ruck Keene discusses the effects of the case. [Law Pod UK, 10 June]

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 […]

‘High Court considers causation in clinical negligence’

Pomphrey v Secretary of State for Health and Anor [2019] 4 WLUK 483 – decision not yet on Bailii but available on Lawtel. This case concerned an alleged failure to diagnose compression of nerve roots leading to cauda equina and alleged delay in operating urgently. It raises an important issue in relation to causation and […]

Tory Weigand, ‘Tort Law – The Wrongful Demise of “but for” causation’

ABSTRACT The observation by Professor Dobbs that ‘[t]he substantial factor test is not so much a test as an incantation’ remains compelling. The continued and widespread use of ‘substantial factor’ in lieu of ‘but for’ as the predominate means of defining causation in any multiple defendant or multiple cause case is troubling. ‘Substantial factor’ was […]

James Macleod, ‘Ordinary Causation: A Study in Experimental Statutory Interpretation’

ABSTRACT … This Article considers a novel approach to ordinary meaning statutory interpretation, using these recent causation cases as a proof of concept: To find how people would ordinarily construe statutory language in context, ask a lot of people to apply the disputed language, and observe what they do. In short, to find public meaning, […]

Nicole Summers, ‘Setting the Standard for Proximate Cause in the Wake of Bank of America Corp v City of Miami

ABSTRACT … The Article argues that the Supreme Court and lower courts must adopt a uniform analytical framework for determining proximate cause in statutory claims. The Article demonstrates that the Supreme Court’s failure to do so thus far has produced deep doctrinal incoherence, culminating in the Court’s inability to articulate a standard for proximate cause […]