Wednesday, February 9, 2011
Jane Stapleton (ANU/Texas) has posted to SSRN Factual Causation. The abstract provides:
The doctrinal parameters of the tort of negligence are remarkably open-textured which is why it has typically been in negligence cases that foundational formulations of factual causation have been made. This area of law has recently undergone an extensive restatement by the American Law Institute and been the subject of legislative attention in all Australian states. In the light of these developments this Essay, in a Special Issue of the Federal Law Review in Honour of Professor Leslie Zines on his 80th Birthday, sketches some essential issues relevant to factual causation which apply not only to the tort of negligence but throughout the law. Inter alia, the Essay argues: that the High Court of Australia’s common sense test of causation is an empty slogan, neither a test nor anything to do with common sense; that Australian courts should cease referring to the ‘scope of the duty’; that a factor should be recognized as a factual cause if it contributes in any way to the existence of the phenomenon in issue even if it is neither a but-for nor a sufficient factor for the existence of the phenomenon in issue; and that aspects of the recent Australian civil liability legislation can and should be ignored.