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Causation compared: facts, fictions inferences and legal legitimacy.

Arnell, Sarah

Authors

Sarah Arnell



Abstract

An analysis of how the supreme courts in Australia, Canada, and the United Kingdom have dealt with evidential difficulties in establishing causation in tort/delict, where there is a gap in scientific knowledge which makes it impossible to say how an injury or disease occurred, highlights the different interpretations given to the “but for” test so central to the rules of causation in all three jurisdictions. These jurisdictions ostensibly apply the “but for” criterion as the primary test for determining causation. Material contribution to harm and increase in risk of harm each play a varying role in causation in each jurisdiction. Their role is determined by the way in which the “but for” test is applied. Particularly as between the United Kingdom, on one hand, and Canada and Australia, on the other, the application of the “but for” test varies significantly and results in a different outcome for the establishment of causation.

Journal Article Type Article
Publication Date Dec 31, 2013
Journal Journal of comparative law
Publisher New Publisher Required
Peer Reviewed Peer Reviewed
Volume 8
Issue 1
Pages 63-104
Institution Citation ARNELL, S. 2013. Causation compared: facts, fictions inferences and legal legitimacy. Journal of comparative law, 8(1), pages 63-104.

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