Academic journal article Dalhousie Law Journal

Out of the Black Hole: Toward a Fresh Approach to Tort Causation

Academic journal article Dalhousie Law Journal

Out of the Black Hole: Toward a Fresh Approach to Tort Causation

Article excerpt

I had a feeling once about Mathematics, that I saw it all-Depth beyond depth was revealed to me-the Byss and the Abyss. I saw, as one might see the transit of Venus-or even the Lord Mayor's Show, a quantity passing through infinity and changing its sign from plus to minus. I saw exactly how it happened and why the tergiversation was inevitable: and how one step involved all the others. It was like politics. But it was after dinner and I let it go!

Winston Churchill1

Introduction

One could be forgiven for experiencing that same sense of resigned bafflement that Churchill had on confronting the equally daunting subject of causation. There are few topics in law that have generated as much literature and as much confusion as causation. Law is little different from other disciplines, like science and philosophy. Although the context and purpose may be different, the struggle is equally torturous and troubled. Indeed, the extent of elucidation and clarity achieved seems to be inversely related to the intensity and extent of analysis offered. For all the effort invested, little progress has been made in either the legal academy or the judicial ranks. Causation remains a veritable black hole that, once entered, can rarely be escaped. It has claimed the scholarly lives of almost all those who presume to have decoded or resolved its pervasive puzzles. In this regard, Churchill escaped relatively unscathed.

So why am I entering the field and running the risk of a similar fate? My approach is to reject the present paradigm within which existing theories and accounts operate both at the judicial and academic level. Rather than seek to outline some neutral or pseudo-scientific test for understanding or navigating the black hole of so-called factual causation, I recommend abandoning that irresolvable and hopeless quest. By this, I mean that the mysteries of causation do not lend themselves to resolution in any analytical or pure manner. Different answers will recommend themselves depending on the context and purpose of any inquiry: what will pass argumentative muster in one situation (e.g., science) will not be appropriate for another (e.g., law). In short, I take the view that, if you ask the wrong questions about causation in torts (as most judges and scholars do) you are guaranteed to get the wrong answers. In line with this, I will develop a different approach for meeting the challenge of fixing causation in tort law. Mindful that "knowledge of facts presupposes knowledge of values,"2 I insist that the requirement of causation must be understood as being entirely part of the broader debate on the goals and policies of tort law generally. Causation is a topic drenched with normative values and should be treated as such.

Most of the scholarly action concerns those situations in which there are multiple tortfeasors and the like. However, the efficacy of the "but for" test is dubious and contested for even the most basic one-on-one instances of tort liability. The most recent cases of Clements v. Clements3 in Canada and Williams v. Bermuda Hospitals Board4 in the United Kingdom offer testament to that; both involve a possible tortious cause and a non-tortious one. Accordingly, after introducing the present state of Canadian doctrine on causation, I examine the best, if flawed, scholarly efforts at solving the mysteries of causation; it is not my intention to offer an exhausting or exhaustive account of the existing scholarly literature. Then, after digging deeper into Clements and its theoretical underpinnings, I look at how causation can be dealt with as a policy matter. The final third of the essay lays out a different way of looking at tort law and how a causation rule inspired by McGhee v National Coal Board5 might be designed that respects that approach. Throughout the essay, the ambition is to get beyond the prevailing tendency to treat causation as being an exclusively factual issue and to grasp it as a thoroughly policy-based inquiry. …

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