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Ben-Shahar, Omri --- "Causation and Foreseeability" [2009] ELECD 289; in Faure, Michael (ed), "Tort Law and Economics" (Edward Elgar Publishing, 2009)

Book Title: Tort Law and Economics

Editor(s): Faure, Michael

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847206596

Section: Chapter 3

Section Title: Causation and Foreseeability

Author(s): Ben-Shahar, Omri

Number of pages: 26

Extract:

3 Causation and foreseeability
Omri Ben-Shahar*


3.1 Introduction
The contribution of economic analysis is particularly evident in the law
of causation. The vast juristic literature on causation has not managed to
clarify the essence of the requirement. In fact, prominent tort scholars have
conceded that `there is perhaps nothing in the entire field of law which has
called for more disagreement, or upon which the opinions are in such a
welter of confusion' (Keeton et al., 1984, p. 263), and that `both courts and
textbook writers still fall back when deciding issues in causal terminology'
(Hart and Honoré, 1985, p. 1). Economic analysis provides much needed
order in this field. The contribution is twofold. First, conceptually, eco-
nomic analysis provides a framework that unifies the analysis of seemingly
unrelated problems. Second, normatively, economic analysis can help
determine which acts constitute the cause of an injury, for the purpose of
holding the actor liable.
The attempts of traditional tort scholarship to make sense of the law
of causation have led to the classification of the debates into two separate
doctrines, cause-in-fact and proximate cause. The cause-in-fact doctrine
defines when an act is part of a causal chain that ends with the injury. Here,
the but-for test is the most common intuitive criterion for inferring such a
factual causality relation. But not all acts that are cause-in-fact are also
deemed liable. The law narrows down the responsibility to those satisfy-
ing additional `legal' ...