Category Archives: Causation

Alex Long, ‘Abolishing the Suicide Rule’

ABSTRACT Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the US, making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and […]

Wayne Courtney, ‘Contract Damages and the Promisee’s Role in its Own Loss’

ABSTRACT In a claim for compensation for breach of contract, various principles take account of the injured party’s own involvement in its loss. This article considers the interaction of three of them: intervening causation, mitigation as avoidable loss, and reliance upon the contract. Judges and academics alike have suggested that there is a connection between […]

Marco Rizzi, ‘A Dangerous Method: Correlations and Proof of Causation in Vaccine Related Injuries’

Abstract In June 2017 the Court of Justice of the European Union (CJEU) handed down a complex decision on the liability of vaccine producers. The reference for a preliminary ruling stemmed from a French case in which a hepatitis B vaccine manufactured by Sanofi Pasteur allegedly caused personal injury to Mr W in the form […]

Estelle Brosset, ‘Distinguishing between law and science in terms of causation and the hepatitis B vaccine: W v Sanofi Pasteur

Case C-621/15, NW and Others v Sanofi Pasteur MSD and Others, Judgment of the Court of Justice (Second Chamber) of 21 June 2017, EU:C:2017:484. In this preliminary ruling, the Court of Justice, answering the French Supreme Court, ruled that Article 4 of Directive 85/374 on the approximation of the laws, regulations and administrative provisions concerning […]

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 […]