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Torts and Rights$
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Robert Stevens

Print publication date: 2007

Print ISBN-13: 9780199211609

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199211609.001.0001

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(p.129) 6 Causation
Torts and Rights

Robert Stevens

Oxford University Press

The standard approach to issues of ‘factual’ causation is to apply a counter-factual analysis. But for X would Y not have occurred? There are said to be two problems associated with this test of necessity. First in cases of ‘over-determination’ it is said to result in ‘false negatives’. The NESS test proposed by some academics as a substitute for the counter-factual enquiry is a result of failing to separate out the questions of wrongfulness and its consequences. The second problem is that of evidentiary gaps, in particular where the claimant has been the victim of a wrong but is unable to pinpoint which of a number of culpable parties is the wrongdoer. Legitimate and illegitimate solutions to this problem are canvassed.

Keywords:   factual causation, but for test, over-determination, NESS, evidentiary gaps

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