Causation and the Goals of Tort Law

Abstract

In this chapter, I explore the relationship between causation and the “goals” of tort law. My contention is that it is impossible to understand or to resolve difficult questions concerning causation unless it is appreciated that these issues go to the heart of what tort law is about. The chapter is divided into three parts. In the first part, I consider the problem of causal indeterminacy in tort law by reference to the leading English cases on the subject. In the second part of the chapter I look at the loss of a chance theory, according to which some cases of causal indeterminacy in tort law can be resolved by re-characterising the claimant’s injury as the loss of a chance of avoiding injury, as opposed to the injury itself. And in the third and final part of the chapter, I look at the relationship between causal indeterminacy and the “goals” of deterrence and compensation. In particular, I argue that recent developments in the English law on causation are only explicable by reference to these two goals, and that they also underlie the push towards recovery for lost chances. I finish by identifying some of the drawbacks of modifying tort law in this way in response to instrumentalist concerns.

Keywords: tort law, negligence, causation, causal indeterminacy, loss of a chance, instrumentalism