Category Archives: Causation

‘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 […]

‘No damages if proven breach is not an effective cause of loss: “bitter truth” for innocent parties’

“In determining whether a breach of contract operates as an effective cause of the loss claimed, the court must apply ‘common sense’. Although there is a ‘moral asymmetry’ where one party is at fault and the other an innocent victim of wrongdoing, some breaches, however reprehensible, result in no loss that can be recovered by […]

‘New Judgment: Financial Conduct Authority v Arch Insurance (UK) Ltd and Others [2021] UKSC 1′

“In March 2020, the UK Government began to take a series of measures to combat the transmission of COVID-19. The present appeals considered the impact of these actions and measures on 28 clauses in the 21 lead policies written by the Appellant Insurers. The proceedings have been brought by the Financial Conduct Authority (the ‘FCA’) […]

Sandra Sperino, ‘The Emerging Statutory Proximate Cause Doctrine’

ABSTRACT The year 2011 marked the birth of a new idea. The United States Supreme Court decided Staub v Proctor Hospital and for the first time invoked common law proximate cause in the context of federal employment discrimination law. It is rare in jurisprudence to be present at the birth of an idea and then […]

‘Beware of Strangers Bearing Gifts’

Joshua Knob and Scott J Shapiro, Proximate Cause Explained: An Essay in Experimental Jurisprudence, 88 University of Chicago Law Review (forthcoming, 2021) available at SSRN. A familiar rhetorical trope in modern advocacy is: ‘Imagine if visitors from outer space were observing x; how would they describe it?’ The payoff of this exercise is to get […]

Call for Submissions: University of Western Australia Law Review, special number on Causation

Requirements of causation are pervasive in the law. In most private disputes, the defendant is only liable to the plaintiff if the plaintiff can satisfy a requirement of causation. Usually, this means that a plaintiff must prove that the defendant’s conduct caused the plaintiff’s loss. Causation thus acts as one of the essential gatekeepers of […]

‘Federal court rules that parents of a third grader who committed suicide has a cause of action against school board and school principal’

“In a case that has a number of interesting implications the Court of Appeals for the Sixth Circuit has affirmed the denial of a motion to dismiss in a case involving the suicide of a young boy due to bullying in school. The case involves a third grader who committed suicide after allegedly being the […]

Lando and Schweizer, ‘Causation and the Incentives of Multiple Injurers’

ABSTRACT Under the but-for requirement of causation, a tort injurer cannot be held liable for more than the difference between the loss the victim would have suffered if the injurer had not been negligent, and the loss that is in reality suffered. We ask whether this causation requirement yields efficient precaution in the context of […]

Alec Walen, ‘More Contra Moore on Absences as Causes’

ABSTRACT Michael Moore’s 2009 book Causation and Responsibility is a landmark work on causation and the law. In it he defends a thesis that seems highly intuitive, namely that there is no such thing as causation by omission. Jonathan Schaffer has offered a compelling rebuttal, the punchline of which is that on Moore’s view beheading […]