Category Archives: Causation

‘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 […]

‘Case Comment: Perry v Raleys Solicitors [2019] UKSC 5′

“The respondent, Mr Perry, is a retired miner. He suffers from a condition known as Vibration White Finger (‘VWF’). VWF is caused by excessive use of vibratory tools. It can cause a reduction in grip strength and manual dexterity in the fingers. Sufferers are often unable to carry out routine domestic tasks, such as gardening […]

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 […]