Going beyond actual causation, I think there is in all these cases,

involving both physical and mental causation, the further issue of a

widely applied (at least in the US) 'no worse off' attributable

responsibility limitation that, unfortunately, is often confused with

actual causation since it closely resembles the but-for test.  If the

same decision or physical result would have been made in the absence of

any legally responsible cause (including NESS influence), the plaintiff

is 'no worse off' due to improper behavior and cannot recover.  The

obvious physical injury case would be one involving two fires, one

tortiously set, the other set by lightning.  I have argued that this

explains the difference between Jobling and Baker v Willoughby.  See

part III of http://works.bepress.com/richard_wright/1/.  In economic

torts the issue often is whether the loss would have occurred anyway due

to market forces.

The existence, scope and proper location of this limitation was a

subject of prolonged debate (by the Council rather than the membership)

in the drafting of the Restatement Third of Torts.  The Third

Restatement departed from the first and second in acknowledging its

existence, but, IMHO, incorrectly states that it should be treated as a

damages issue rather than an attributable responsibility (scope of

liability) issue.  This may have been due at least in part to the fact

that the debate about its existence and proper (comprehensive) scope was

not resolved until very late in the drafting process, after work on the

scope of liability sections had been completed.

-----Original Message-----

From: Andrew Robertson [mailto:a.robertson@unimelb.edu.au]

Sent: Wednesday, March 31, 2010 6:13 PM

To: Tettenborn, A; obligations@uwo.ca

Subject: Re: Punitive Damages and Undue Influence

Andrew T suggests that if there was no evidence as to the influence of

the non-disclosure on Mrs Hewett's decision to enter into the

transaction then she ought to lose. But what (reliable) evidence could

there be? As has been pointed out in a number of cases there is no point

putting someone like Mrs Hewett in the witness box: what she would have

done had she known of the affair is pure speculation and she can't even

say herself with any certainty. It is impossible to disentangle her

motivations after the fact.

A similar evidentiary problem arises whenever a person enters into a

transaction or otherwise acts to his or her detriment following the

exertion of pressure or influence or the making of a promise or

representation by another. The problem therefore similarly affects the

doctrines of deceit, duress and promissory and proprietary estoppel,

amongst others. In all of those doctrines the same solution is adopted:

a 'but for' approach to causation is rejected in favour of a requirement

that the influence in question be 'a cause', and a rebuttable

presumption is made that the influence, promise, representation etc was

influential. In most cases, as here, no evidence is available to rebut

the presumption.

Andrew

On 1/04/10 5:21 AM, "Tettenborn, A" <A.M.Tettenborn@exeter.ac.uk> wrote:

> I absolutely agree with Richard's view, assuming that the assumption

> of marital fidelity was a factor which had some -- albeit not decisive

> -- influence. But even NESS causation has to be proved. I'm just

> wondering what, if any evidence, there was that this assumption of Mrs

> Hewett's had any influence at all. If there wasn't any, then (unless

> we monkey around with the burden of proof) surely she ought to lose.

>

> Happy Easter

>

> Andrew