Category Archives: Causation

‘Proving Things 233: Assessing Evidence After 14 Years: The Cruel Concept Of Causation In Medical Negligence’

“This blog has looked many times at issues relating to witness evidence and the judicial approach when hearing evidence of matters that happened a considerable time before trial. The difficulties are made clear in the judgment of HHJ Emma Kelly in Richins v Birmingham Women’s and Children’s NHS Foundation Trust [2022] EWHC 847 (QB). This […]

Robert Rhee, ‘Probabilistic Causation in the Loss of Chance Doctrine: A Comment on Efficiency and Error Mitigation’

ABSTRACT The loss of chance doctrine in tort law solves a recurring problem in the context of medical malpractice in which severely ill patients are misdiagnosed or mistreated. Absent a theory permitting probabilistic recovery, traditional factual causation inquiry always results in the finding of no causation in individual cases. But we know as a matter […]

Sandra Sperino, ‘The Causation Canon’

ABSTRACT It is rare to witness the birth of a canon of statutory interpretation. In the past decade, the Supreme Court created a new canon – the causation canon. When a statute uses any causal language, the Court will assume that Congress meant to require the plaintiff to establish ‘but for’ cause. This Article is […]

Anat Lior, ‘The “Accident Network”: A Network Theory Analysis of Proximate Causation’

ABSTRACT In torts, proximate causation, or legal cause, examines whether a harmful negligent conduct is ‘closely enough related’ to the damages ensued. Tort professors often use the metaphor of a stone being thrown into a pond to explain this rather amorphous legal doctrine. The ripples the stone creates surrounding it are the direct result of […]

Stephen Paul, ‘Proving Causation in Clinical Research Negligence’

ABSTRACT Investigators conducting clinical research create a risk of harm to their human subjects. The common law recognizes a variety of duties that these investigators owe to their subjects. When they breach these duties, such as by negligently designing the study or failing to obtain informed consent, subjects who experience a negative outcome relative to […]

David Bullock, ‘Public Nuisance and Climate Change: The Common Law’s Solutions to the Plaintiff, Defendant and Causation Problems’

ABSTRACT Litigation relating to climate change is on the rise, yet outside the United States few efforts have been made to bring private actions in public nuisance seeking injunctive relief to require a defendant to reduce its emissions. This article examines three key doctrinal challenges facing a plaintiff in a public nuisance action connected to […]

Horia Tarnovanu, ‘Causal Stability in Moral Contexts’

“Understanding the causal course of nature as a complex, seamless structure of interactions exposes causal claims to a basic form of indeterminacy: under an analysis attentive to increasingly broader causal ramifications, it is simply indeterminate which cause or causal pathway in the antecedent network of determiners brings about a target-effect. Any singular target-consequence appears to […]

Sara Golru, ‘The Challenge of Proving Toxic Tort Causation: Genetic Markers as the Solution?’

ABSTRACT Sara Golru, in ‘The Challenge of Proving Toxic Tort Causation: Genetic Markers as the Solution?’, presents a comparative analysis of the role of genetic marker evidence in toxic tort cases throughout Australia and the United States. Sara identifies inconsistencies in the approach of Australian courts to genetic evidence of causation, and considers how developments […]

Maytal Gilboa, ‘Linking Gains to Wrongs’

ABSTRACT This article provides a theoretical and doctrinal explanation of how the but-for test links gains to the wrong that produced them. Gain-based damages cases focus on the gain resulting from the defendant’s tortious behaviour. In these cases, the contrastive aspect of the but-for test, requiring the factfinder to consider the hypothetical result that would […]

Güver and Kneer, ‘Causation and the Silly Norm Effect’

ABSTRACT In many spheres, the law takes the legal concept of causation to correspond to the folk concept (the correspondence assumption). Courts, including the US Supreme Court, tend to insist on the ‘common understanding’ and that which is ‘natural to say’ (Burrage v United States) when it comes to expressions relating to causation, and frequently […]