(2013) 129 Law Quarterly Review 39-65
Posted: 10 Jun 2013
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.
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 pornography.
Keywords: factual causation
JEL Classification: K10, K13, K14, K32
Suggested Citation: Suggested Citation