Causation (Contribution) and the 'No Worse Off' Limitation on Liability
52 Pages Posted: 9 Feb 2022 Last revised: 2 Mar 2022
Date Written: February 5, 2022
In this article, I rebut claims that there is no core sense of causation that underlies all of our uses of causal expressions, identify that core sense as causation in accordance with and as determined by the laws of nature, and elaborate and defend the NESS (necessary for the sufficiency of a sufficient set) weak-necessity analysis of those laws and their instantiation in specific situations. I explain that omissions/absences are aspects of real states of affairs that usually, but not always, contribute negatively to some result by causing, through lack of instantiation, the failure of a causal process that would have prevented the result from occurring, and that analysis of the failure of a causal process requires focusing on the point at which it irretrievably failed, which differs from the focus on complete instantiation of a successful causal process. Finally, I discuss the ‘no worse off’ (NWO) limitation on liability for damages for wrongfully caused harm, which applies when the damages would have occurred anyway in the absence of any wrongful conduct by anyone. It is frequently applied but infrequently acknowledged due its very often being confused with the strong necessity (but-for/sine qua non) analysis of causation. I criticise its rejection in the current (CD1) draft of the Restatement Third of Torts: Remedies based on dicta in a few cases drawn from a narrowly specified set of cases, despite its being required by the ‘rightful position’ interactive-justice principle upon which that project is grounded and its being applied generally in many cases outside of and in that narrowly specified set, as has been recognised by the reporters for the Restatement Third of Torts: Liability for Physical and Emotional Harm and the reporters for the Restatement Third of Torts: Economic Harm.
Keywords: causation, factual causation, necessity, sufficiency, 'no worse off' limitation, liability, damages, omissions, negative causation
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