Misleading Conduct, Reliance and Market-Based Causation

39 Pages Posted: 14 May 2021 Last revised: 7 Sep 2021

See all articles by Henry Cooney

Henry Cooney

The University of Western Australia

Date Written: May 12, 2021

Abstract

Recent Australian decisions have opened the door to the possibility of liability premised on a ‘market-based’ theory of causation. This article is concerned to explore this emerging category of claims, particularly when founded upon an allegation of misleading or deceptive conduct. Specifically, this article is concerned to examine the nature of market-based causation and to consider the role that ‘reliance’ has in a case based on a market-based theory of causation. This article’s core contention is that the enquiry into factual causation has been unhelpfully merged with the scope of liability enquiry in cases involving misleading or deceptive conduct. This unfortunate mix-up has led to a misunderstanding of the role of reliance in cases of market-based causation. This article argues that, in a case of market-based causation, the concept of ‘reliance’ is not always relevant to the factual causation enquiry. Instead, reliance (or the absence of reliance) is best viewed as a normative issue going to a defendant’s scope of liability.

Keywords: Market-Based Causation, Reliance, Misleading Conduct, Misleading or Deceptive Conduct, market based causation, market-based, market based, misleading conduct, indirect causation, causation,

Suggested Citation

Cooney, Henry, Misleading Conduct, Reliance and Market-Based Causation (May 12, 2021). University of Western Australia Law Review, Vol. 48, No. 2, 2021, Available at SSRN: https://ssrn.com/abstract=3844518 or http://dx.doi.org/10.2139/ssrn.3844518

Henry Cooney (Contact Author)

The University of Western Australia ( email )

35 Stirling Highway
Crawley, Western Australia 6009
Australia

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