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.
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