Robert Stevens
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199211609
- eISBN:
- 9780191705946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199211609.003.0006
- Subject:
- Law, Law of Obligations
The standard approach to issues of ‘factual’ causation is to apply a counter-factual analysis. But for X would Y not have occurred? There are said to be two problems associated with this test of ...
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The standard approach to issues of ‘factual’ causation is to apply a counter-factual analysis. But for X would Y not have occurred? There are said to be two problems associated with this test of necessity. First in cases of ‘over-determination’ it is said to result in ‘false negatives’. The NESS test proposed by some academics as a substitute for the counter-factual enquiry is a result of failing to separate out the questions of wrongfulness and its consequences. The second problem is that of evidentiary gaps, in particular where the claimant has been the victim of a wrong but is unable to pinpoint which of a number of culpable parties is the wrongdoer. Legitimate and illegitimate solutions to this problem are canvassed.Less
The standard approach to issues of ‘factual’ causation is to apply a counter-factual analysis. But for X would Y not have occurred? There are said to be two problems associated with this test of necessity. First in cases of ‘over-determination’ it is said to result in ‘false negatives’. The NESS test proposed by some academics as a substitute for the counter-factual enquiry is a result of failing to separate out the questions of wrongfulness and its consequences. The second problem is that of evidentiary gaps, in particular where the claimant has been the victim of a wrong but is unable to pinpoint which of a number of culpable parties is the wrongdoer. Legitimate and illegitimate solutions to this problem are canvassed.
Cees Van Dam
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199672264
- eISBN:
- 9780191751288
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199672264.003.0011
- Subject:
- Law, Law of Obligations, EU Law
This chapter examines the causal connection between the tortfeasor's conduct or the cause for which he is strictly liable, on the one hand, and the damage, on the other. Problems arise if there is ...
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This chapter examines the causal connection between the tortfeasor's conduct or the cause for which he is strictly liable, on the one hand, and the damage, on the other. Problems arise if there is difficulty establishing who caused the damage, or if there is more than one possible legal cause. In these matters of causation, it is pivotal and often decisive as to who has the burden of proof. A general difference in causation is that the English and French approaches are rather more practical, whereas the German approach has developed detailed theories to deal with this requirement for liability.Less
This chapter examines the causal connection between the tortfeasor's conduct or the cause for which he is strictly liable, on the one hand, and the damage, on the other. Problems arise if there is difficulty establishing who caused the damage, or if there is more than one possible legal cause. In these matters of causation, it is pivotal and often decisive as to who has the burden of proof. A general difference in causation is that the English and French approaches are rather more practical, whereas the German approach has developed detailed theories to deal with this requirement for liability.
Duncan Fairgrieve
- Published in print:
- 2003
- Published Online:
- March 2012
- ISBN:
- 9780199258055
- eISBN:
- 9780191698507
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258055.003.0006
- Subject:
- Law, Law of Obligations
This chapter aims to clarify the attitude of the French and English courts toward state liability in tort with a comparative survey of prevailing tests of causation in each jurisdiction. The English ...
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This chapter aims to clarify the attitude of the French and English courts toward state liability in tort with a comparative survey of prevailing tests of causation in each jurisdiction. The English courts adopted an approach of causal inquiry into the tort of negligence divided into a two-stage analysis — preliminary filter of factual causation using the causa sine qua non theory (but-for test) and the question of legal cause based on reasonable forseeability. On the other hand, the French courts asserted a unitary conception of causation — a nuanced approach which relies on various causal theories to address the problems of assessing liability. However, with both approaches, there is a concern for multiple causes such as third parties, contributory fault of the injured party, and independent natural events, as well as the matter of unlawful administrative acts.Less
This chapter aims to clarify the attitude of the French and English courts toward state liability in tort with a comparative survey of prevailing tests of causation in each jurisdiction. The English courts adopted an approach of causal inquiry into the tort of negligence divided into a two-stage analysis — preliminary filter of factual causation using the causa sine qua non theory (but-for test) and the question of legal cause based on reasonable forseeability. On the other hand, the French courts asserted a unitary conception of causation — a nuanced approach which relies on various causal theories to address the problems of assessing liability. However, with both approaches, there is a concern for multiple causes such as third parties, contributory fault of the injured party, and independent natural events, as well as the matter of unlawful administrative acts.
