Causation compared: facts, fictions inferences and legal legitimacy.

Arnell, Sarah

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.

Citation

ARNELL, S. 2013. Causation compared: facts, fictions inferences and legal legitimacy. Journal of comparative law, 8(1), pages 63-104.

• Journal Article Type: Article
• Acceptance Date: Dec 31, 2013
• Online Publication Date: Dec 31, 2013
• Publication Date: Dec 31, 2013
• Deposit Date: Aug 28, 2014
• Publicly Available Date: Aug 28, 2014
• Journal: Journal of comparative law
• Print ISSN: 1477-0814
• Publisher: Wildy, Simmonds and Hill
• Peer Reviewed: Peer Reviewed
• Volume: 8
• Issue: 1
• Pages: 63-104
• Public URL: http://hdl.handle.net/10059/1041