See below, again. Apologies to those who have little interest in this
debate. If it continues, I will take it off the list.

-----Original Message-----
From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]
Sent: Monday, September 26, 2011 10:50 AM
To: Wright, Richard; 'Sandy Steel'
Cc: obligations@uwo.ca
Subject: RE: ODG: Blaming the Scots for the common law's factual
causation follies

(i) Why (as a matter of principle) do you think this?

"RWW: See quoted text above and Parts I and II of my article, The
Grounds
and Extent of Legal Responsibility. Tort liability is liability for
having
adversely affected others' equal external freedom through an unjust
interaction. Such an adverse effect has not occurred, no matter how bad
the
defendant's conduct and regardless of actual causation and
foreseeability
etc., if the plaintiff would have suffered the same injury/harm/loss
anyway
due to non-legally-responsible causes. The adverse impact on the
plaintiff's external equal freedom has occurred if the injury would have
occurred anyway due only to other tortious (or otherwise legally
responsible) conditions, which share legal responsibility and liability
if
they also were actual (duplicative) causes rather than preempted
conditions.
In either case, the plaintiff has suffered a setback to his interests,
caused by the defendant's tortious conduct, for which the defendant
luckily
escapes liability only due to the fortuity that the injury would have
happened anyway due to other (duplicative or preempted)
non-legally-responsible conditions. *In such situations, it seems to me*
that the plaintiff should be denied recovery for the injury tortiously
caused by the defendant only if the defendant clearly proves that such
injury would have happened anyway due to non-legally-responsible
conditions."

Rob: But why does this follow? If I accepted all that went before *, but
your conclusion didn't seem to me to follow, how would you prove I was
wrong?

RWW: It is not meant to be a logical proposition, but a personal
normative one, as indicated, for the reasons given: we (although some
disagree) will let you escape liability for having (foreseeably) caused
injury to another by your wrongful, tortious conduct if that injury
would have occurred anyway in the absence of your or anyone else's
tortious (or otherwise legally responsible) conduct. In that case
(only), luckily for you, *no adverse effect on your external freedom has
occurred as a result of others' legally responsible conduct*. However,
before plaintiffs are denied recovery on this ground, it should be clear
that the injury would have occurred anyway in the absence of any legally
responsible conduct.

Is "has not occurred" in the third sentence, synonymous with "has not
been
caused"?

RWW: No, but I don't want to get into word games. See the language
between the asterisks in my response immediately above.


I still remain of the view if X would have happened anyway, regardless
of Y,
Y did not cause X, and that it is at very best counter-intuitive to
describe
this as a concern of 'scope of liability' rather than causation.

RWW: And you still remain pretty much alone with this view, given
situations
involving causal overdetermination.

Rob: Not in my universe, outside of some legal circles.


Best
Rob