Category Archives: Causation

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 […]

Ebers and Quarch, ‘EU Consumer Law and the Boundaries of the Crowdfunding Regulation’

ABSTRACT One of the main goals of the Crowdfunding Regulation 2020/1503 (hereinafter: CR) is the protection of non-professional investors. In a similar vein, EU Consumer Law strives to achieve a high level of consumer protection in the EU Digital Single Market. This chapter delineates the ‘boundaries’ of the CR and its potential interactions with EU […]

‘Causation in Occupational Cancer Claims: An Overview’

“The law adopts a nuanced approach to causation in occupational cancer claims. Practitioners dealing with such claims must be alive to the distinctions and difficulties that may arise in this area. This post provides an overview of the application of the different tests for causation, when they apply and their practical implications on case preparation […]

Marcus Roberts, ‘Causation and Reliance in New Zealand Negligence Cases’

ABSTRACT There have been a number of interesting judgments over the last two years concerning liability for negligent misstatements resulting in economic loss. This part of the seminar will look at decisions from the Supreme Court, the Court of Appeal and the High Court focusing in particular on the question of when a duty of […]

Ewan McGaughey, ‘Liability for climate damage and shipping’

ABSTRACT How can the global shipping industry play its part in the fight to stop climate damage? Shipping accounts for around 90% of all international trade, and for 2.5% to 4% of all global greenhouse gas emissions, which damage the Earth’s climate. The shipping industry is also heavily concentrated. The top four European firms alone […]

‘What Happened, Before Applying Standard of Care’

“Negligence is determined by a standard of care that a relevant prudent person would undertake, rather than the results that such a theoretical person would seek to attain or avoid. Although Canada initially inherited the reasonable person standard from England in Vaughn v Menlove, 1837 132 ER 490, it has developed significantly since that time. […]

Katie Eyer, ‘The But-For Theory of Anti-Discrimination Law’

ABSTRACT Discrimination law has long been in theoretical crisis. Its central theory – disparate treatment law – has no agreed-upon core principles. Because prevailing theories of discrimination once treated ‘disparate treatment’ and ‘discriminatory intent’ as coextensive – something we now know not to be true – it is unclear whether all ‘disparate treatment’ is truly […]

‘State supreme court upends causation in tort law, promising plenty post-pandemic work for lawyers’

“The high court of Massachusetts, in a 3-2 decision, has effected a seismic shift in tort law, adopting on Friday a new approach to legal causation. The court’s holding casts into uncertainty fundamental rules developed over more than a century across the full range of tort liability theories. Years, even decades of litigation may be […]

‘Revisiting the Test of Material Contribution in Clinical Negligence Claims following Davies v Frimley Health NHS Foundation Trust

“In Davies v Frimley Health NHS Foundation Trust [2021] EWHC 169 (QB), the High Court considered the question of causation in circumstances where the deceased had suffered from acute pneumococcal meningitis. Ultimately, HHJ Auerbach, sitting as a Judge of the High Court, concluded that if antibiotics had been commenced by 10.40 on 25 February 2015, […]

Recently published: Jane Stapleton, Three Essays on Torts

This book of essays champions tort scholarship that puts judges at centre stage: what they do, how they understand their role, the heterogeneous reasons they give for their decisions, and their constitutional responsibility to identify and articulate the ‘living’ and ‘evolving’ common law. This is ‘reflexive tort scholarship’. Reflexive tort scholars seek dialogue with Bench […]