Causation Flashcards
(22 cards)
When is causation relevant in tort law?
Only when negligence is present.
What is the ‘but for’ test in causation?
Would the damage have happened but for the defendant’s action?
What is a limitation of the ‘but for’ test?
It fails in complex or loss-of-chance cases.
How do legal systems limit ‘but for’ causation?
By checking foreseeability, likelihood, norm scope, and directness.
What are Germany’s two types of causation?
Liability founding (did it cause harm?) and liability specifying (how much harm?).
What is adequacy theory in German law?
A filter to ensure harm was foreseeable and not too unlikely.
What is the ‘scope of the norm’ test?
Whether the broken rule was meant to prevent the kind of harm suffered.
What standard of proof is used for causation in English law?
Balance of probabilities (more likely than not).
What case changed England’s causation test from directness to foreseeability?
The Wagon Mound (1961).
What is the material contribution test?
If negligence materially contributed to harm, it satisfies causation.
What does French law require for causation?
A certain and direct causal link.
What are common French defenses to causation?
External cause and efficient causation (the most adequate cause).
What causation test is used in EU law?
‘But for’ test and a direct link.
Why is proving causation in EU law hard for financial loss?
Requires high detail, and economic risks are often excluded.
Who usually has the burden to prove causation?
The claimant.
What is ‘res ipsa loquitur’?
If harm obviously came from the defendant, no need to prove causation.
What is proof by exclusion in France?
Ruling out other causes is enough to establish causation.
Why might courts deny liability even when causation exists?
Due to moral or policy considerations (e.g. criminal cannot profit).
Why should causation include those best positioned to prevent harm?
It enhances deterrence and promotes safety.
What is a critique of current causation rules?
They prioritize economic interests over human well-being.
Why resist reforming causation to focus on deterrence?
It would reduce legal predictability and harm economic progress.
What’s a risk of assigning liability to those best positioned to prevent harm?
It introduces subjectivity and undermines individual responsibility.
