From: Wright, Richard <Rwright@kentlaw.edu>
To: obligations@uwo.ca
Date: 10/03/2011 17:04:58 UTC
Subject: RE: UK Supreme Court Decision on Causation

For what it is worth, my specific response to Rob's attempt to defend the but-for test as the exclusive test of causation (rather than as a corollary of the NESS test) appears in fn 64 of my forthcoming paper, 'The NESS Account of Natural Causation: A Response to Criticisms' in Richard Goldberg (ed), Perspectives on Causation (Oxford, Hart Publishing, 2011) ch 14:
 

Stevens claims to reject Mackie’s aggregative move, not because it is illogical but rather because the law focuses on individual rather than aggregative responsibility.  Stevens (n 53) 131.  However, he implicitly employs it when assessing ‘substitutive’ and consequential damages for infringement of a right.  For example, if a plaintiff’s dog was killed by two stab wounds inflicted by different defendants, each of which would have been sufficient by itself to cause the death of the dog, Stevens asserts that the two defendants are each liable for ‘the value of the dog’ as ‘substitutive’ damages for their respective infringements of the plaintiff’s right to the dog, and also for any consequential damages that are a but-for result of the dog’s death, but that double recovery is not permitted since ‘he only had one right to the dog’.  Ibid 134.  Yet the but-for test can only establish each defendant’s causation of a distinct stab wound, not the death of the dog, and thus it cannot support holding either defendant liable for ‘substitutive’ damages for the full ‘value of the dog’ or for consequential damages caused by the dog’s death.  Rather, under the individually applied but-for test that Stevens claims to be applying, each defendant can only be held liable for the ‘substitutive’ value of the rights infringement that is constituted by his or her stabbing of the dog, however that might be valued, and any consequential damages (of which there likely will be none) that are a but-for result of his or her distinct rights infringement.  Moreover, although there is ‘only one right to the dog’, it is a right that each defendant has separately and distinctly infringed, and thus, under Stevens’ odd damages theory, each defendant should be fully but separately, rather than concurrently, liable for ‘substitutive’ damages for his or her distinct rights infringement, regardless of any resulting ‘double recovery’.



From: DAVID CHEIFETZ [mailto:davidcheifetz@rogers.com]
Sent: Thu 3/10/2011 7:54 AM
To: obligations@uwo.ca
Cc: robert.stevens@ucl.ac.uk
Subject: Re: UK Supreme Court Decision on Causation

Rob,
 
It seems to me, for whatever that is worth, that all I can usefully add is that Richard Wright's forthcoming "NESS Defence" adequately responds to your line of criticism.
 
Best,
 
David


From: DAVID CHEIFETZ <davidcheifetz@rogers.com>
To: obligations@uwo.ca
Sent: Wed, March 9, 2011 5:07:11 PM
Subject: UK Supreme Court Decision on Causation

I've read that. I saw your point (I think) but we'll have to disagree on the better analysis. I prefer the NESS analysis. More when I get home and have the text in front of me. Off list might be better.
 
Best
 
David


From: Robert Stevens <robert.stevens@ucl.ac.uk>
To: DAVID CHEIFETZ <davidcheifetz@rogers.com>
Sent: Wed, March 9, 2011 4:17:57 PM
Subject: Re: UK Supreme Court Decision on Causation


> What then of the true overdetermined - duplicative causation -
> cases which
> orthodox but-for cannot handle?
>

It can. If you think it can't you are asking the wrong question. see the
chapter on causation in my book.
best
Rob
--
Robert Stevens
Professor of Commercial Law
University College London