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 inquiry should proceed. I examine the role of counterfactual analysis in the assessment of damages generally, before exploring the special difficulty it raises in cases involving ‘disjunctive’ duties capable of being variously satisfied. By virtue of certain doctrinal assumptions, it is a difficulty that courts have mostly avoided. I argue that these assumptions are unjustifiable and should be jettisoned. The problem of how to determine the counterfactual, lawful conduct of a defendant who violated a disjunctive duty cannot be avoided. I propose a principled solution to the problem that can be straightforwardly applied by judges.
Pratt, Michael Gordon, What Would the Defendant Have Done But for the Wrong? (August 28, 2019). Oxford Journal of Legal Studies, forthcoming.