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Tort Law: Text and Materials

Tort Law: Text and Materials (6th edn)

Mark Lunney, Donal Nolan, and Ken Oliphant
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date: 22 April 2024

p. 2135. Causation and Scope of Liabilitylocked

p. 2135. Causation and Scope of Liabilitylocked

  • Mark Lunney, Mark LunneyProfessor of Law, University of New England in New South Wales
  • Donal NolanDonal NolanProfessor of Private Law. Francis Reynolds and Clarendon Fellow and Tutor at Worcester College, University of Oxford
  •  and Ken OliphantKen OliphantDirector of the Institute for European Tort Law, Austrian Academy of Sciences, Vienna

Abstract

Before liability can arise in negligence a causal link must be established between the negligence of the defendant and the injury for which the claimant claims compensation. The first hurdle that must be overcome is to show an historical connection between the defendant’s negligence and the injury (factual causation). This is normally decided by the application of the but-for test: but for the defendant’s negligence, would the claimant have suffered the injury that he or she did? If factual causation is satisfied, the claimant must then show that the defendant should be legally responsible for the damage the claimant has suffered. This second strand of the causation enquiry may involve issues of ‘legal causation’, which is to say consideration of the effect of intervening acts, whether of the claimant or of a third party, occurring between the defendant’s negligence and the claimant’s injury. It may also involve consideration of whether the defendant should not have to pay for the full extent of the damage because it is considered too remote. These issues are considered in this chapter.

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