Sandy Steel

Proof of Causation in Tort Law

Causation is a foundational concept in tort law: in claims for compensation, a claimant must demonstrate that the defendant was a cause of the injury suffered in order for compensation to be awarded. Proof of Causation in Tort Law provides a critical, comparative and theoretical analysis of the general proof rules of causation underlying the tort laws of England, Germany and France, as well as the exceptional departures from these rules which each system has made. Exploring the different approaches to uncertainty over causation in tort law, Sandy Steel defends the justifiability of some of these exceptions, and categorises and examines the kinds of exceptional rules suggested by the case law and literature. Critically engaged with both the theoretical literature and current legal doctrine, this book will be of interest to private law scholars, judges and legal practitioners.

Sienkiewicz v Greif and Exceptional Doctrines of Natural Causation

European and other legal systems generally embed what may be termed a set of orthodox rules of natural causation, so far as tortious liability goes. Such orthodox rules have conceptual and evidential components. The generally agreed conceptual component is the requirement that a defendant’s wrongful conduct be a conditio sine qua non of the claimant’s damage.1 The evidential component has two strands: a rule determining the burden of proof, and a rule determining the standard of proof. Systems agree that the orthodox rule is that the burden of proof is upon the claimant for all liability-grounding elements of the case, of which natural causation forms a part.2 On the face of it, there is disagreement between common law and civil law systems as to the second element, the standard of proof: in the common law, orthodoxy is proof on the balance of probabilities, in the civil law, proof to a high probability.3

THE LOCALITY PRINCIPLE IN PRIVATE NUISANCE

This article considers the principle in the tort of private nuisance that the level of protection to which one is entitled from certain kinds of interference is sensitive to ones locality. It argues that the principle can be partly justified by the different costs of avoiding an interference which different localities create. However, it shows that, if the principle is to be justified in its entirety, a further justification is necessary. The article considers further justifications based on social rules, autonomy, cost minimisation, the idea of a system of equal right and an analogy to the rules on hypersensitive claimants. It largely rejects these explanations and concludes that, to the extent the locality principle requires individuals to bear substantial burdens that they would not have to bear were collective interests set aside, without compensation, it is difficult to justify.

NEGLIGENCE LIABILITY FOR OMISSIONS AND THE POLICE

The police do not owe a duty of care to protect victims from the criminal acts of a third party when investigating or suppressing crime save in exceptional circumstances. This is justified as an application of the omissions principle and on several other grounds. The article argues that most of these justifications are unconvincing and it sets outs a positive rationale for the imposition on the police of a duty of care in respect of sufficiently proximate victims of a negligent omission. The scope of this duty can be coherently delimited by re-adjusting the existing framework of negligence liability of public authorities.

Justifying Exceptions to Proof of Causation in Tort Law

This article defends a set of exceptions to the general rule in tort law that a claimant must prove that a particular defendants wrongful conduct was a cause of its injury on the balance of probabilities in order to be entitled to compensatory damages in respect of that injury. The basic rationale for each exception is that it provides a means of enforcing the defendants secondary moral duty to its victim. The article further demonstrates that the acceptance of this set of exceptions does not undermine the general rule.

Great debates in jurisprudence

1. The Nature of Law 2. The Normativity of Law 3. The Rule of Recognition 4. The Morality of Legality 5. Natural Law 6. Adjudication and Interpretation 7. The Obligation to Obey the Law 8. Morality and Rights 9. Justice 10. The Enforcement of Morality 11. The Value of Studying Jurisprudence