Wednesday, June 12, 2013
Jane Stapleton (Texas/ANU) has posted to SSRN two pieces on causation. First up is Reflections on Common Sense Causation in Australia and the abstract provides:
Part 1 of this chapter argues that the High Court of Australia’s so-called “common sense test” of causation is an empty slogan, neither a test nor anything to do with common sense. For clarity of legal analysis the issue of whether a factor was involved with the existence of the relevant phenomenon (that is, the issue of factual causation) should be kept explicitly separate from the issue of the appropriate scope of legal responsibility for that phenomenon. Expressing the latter scope issue as a “causal” issue is obfuscating and should be abandoned. This Part also argues: that Australian courts should cease referring to the “scope of the duty”; that a factor should be recognised 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 that phenomenon; and that aspects of the civil liability legislation prompted by the Review of the Law of Negligence: Final Report (the “Ipp Report”) can and should be ignored. Part II elaborates the “factual causation then scope-of-liability-for-consequences” approach with illustrations from the common law and under statute, including many of commercial cases.
The second is Unnecessary Causes, not yet available for downloading, and the abstract provides:
This article argues that private law, specifically tort law, should adopt a notion of a “cause” that is wider than the relation of necessity that is encapsulated in the traditional but-for test. The law may have an interest in the relation between an indivisible injury and a specific tortious contribution to the mechanism by which it occurred, which contribution was unnecessary because the relevant element of that mechanism was “over-subscribed”. The suggested approach facilitates separation of two distinct issues: whether a breach of duty contributed to the occurrence of the injury of which complaint is made (the “factual cause” issue); and whether that injury represents “damage” relative to the benchmark of where the victim would have been had he not been the victim of tortious conduct. --CJR
The discussion includes English medical negligence cases, the recent decision of the Supreme Court of Canada in Clements v Clements (2012), and US cases involving Title VII and the downloading of child