Research Handbooks in Comparative Law series
Edited by Mauro Bussani and Anthony J. Sebok
Chapter 13: Causation theories and causation rules
It is a firm tenet of Western tort law that there is no liability without (proof of) causation. No matter what the legal system, no matter what the ground of litigation, the success of a plaintiff's claim is always said to be dependent upon whether, and to what extent, a causal link is established between the defendant's activity and the plaintiff's loss. Despite its ubiquity, or perhaps because of it, causation is one of the most debated topics in Western tort law. Questions lying beneath the apparent simplicity of the causal inquiry are indeed manifold. Would the injury have occurred without the defendant's activity? May the plaintiff's susceptibility to injury be taken into consideration? If so, to what extent? What other factors should be considered? What proof should be given, and by whom? How far can liability for consequences be extended? What reasons should be taken into account in drawing the line between the harmful consequences which can be attributed to the defendant and those which cannot? Should ‘freakish' causal sequences be treated under the same rules as ‘ordinary' accidents? Under what conditions does the causation requirement provide the defendant with socially appropriate incentives to reduce the risk of harm and to moderate her level of activity? This chapter is a comparative analysis of the ways in which Western legal systems address these questions, as well as others which fall under the umbrella of causation.
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