Category Archives: Causation

James Norton, ‘Treating Chance Consistently: Recasting the Approach to Causation and Damage in Negligence’

ABSTRACT ‘Lost chance’ claims in the law of negligence have been the subject of much judicial disagreement and academic debate. Regrettably, issues of consistency and principle in the law’s treatment of chance have been chronically overlooked in this context. In both Australia and England, this has led to decisions compelling even the most optimistic proponents […]

Gemma Turton, ‘Causation and Risk in Negligence and Human Rights Law’

INTRODUCTION … The paper begins, in Section II, by elucidating the causal requirements and the function of causation within each area of law. It is beyond the scope of this paper to address all of the ECHR rights, so the focus is on Articles 2 and 3, and, in the final section Article 8, which […]

Verbruggen and Kryla-Cudna, ‘The Union’s Liability for Failure to Adjudicate within a Reasonable Time: EU Tort Law after Gascogne, Kendrion and ASPLA

ABSTRACT In this article we examine the cases of Gascogne, Kendrion and ASPLA, in which the Court of Justice of the EU found itself confronted – for the first time – with a number of separate damages actions for breach of EU law, namely the alleged failure to adjudicate within a reasonable time as required […]

Damiano Canale, ‘Three Concepts of Probabilistic Causation in the Law’

ABSTRACT Frederick Schauer and Barbara Spellman have recently argued that the probabilistic treatment of causality is widespread in legal practice. Although judicial decisions are focused on single events, there are many aspects of the law in which the relationship between cause and effect is interpreted in probabilistic terms. As in social and natural sciences, also […]

‘Crowdsourcing Plain Meaning’

James A Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation, 94 Indiana Law Journal (forthcoming 2019), available at SSRN. Employment discrimination doctrine is a mess, and one of the messiest parts concerns causation. Problems with causation have been the focal point of many articles in recent years, often in response to the ‘tortification’ of […]

Rizzi and Vicente, ‘Defectiveness and Causation in Vaccine Liability Cases – the Jurisprudence of the Supreme Court of the United States and the Court of Justice of the European Union’

ABSTRACT The reflection we undertake is two-pronged. We analyse the policy arguments put forth in crucial decisions by the European and American highest courts to sanction vaccine-related injuries. In parallel, we investigate the place and role of scientific evidence in the legal framework disciplining liability of vaccine manufacturers. In doing so, we will identify convergence […]

‘Causation in the Law’

“In this context the basic questions concerning causation in the law are: (i) what are the criteria in law for deciding whether one action or event has caused another (generally harmful) event; (ii) whether and to what extent causation in legal contexts differs from causation outside the law, for example, in science and everyday life; […]

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 […]