Normativity, Fairness, and the Problem of Factual Uncertainty

Osgoode Hall Law Journal 47 (4):663-693 (2010)
Abstract
This article concerns the problem of factual uncertainty in negligence law. We argue that negligence law’s insistence that fair terms of interaction be maintained between individuals—a requirement that typically manifests itself in the need for the plaintiff to prove factual or “but-for” causation—sometimes allows for the imposition of liability in the absence of such proof. In particular, we argue that the but-for requirement can be abandoned in certain situations where multiple defendants have imposed the same unreasonable risk on a plaintiff, where the plaintiff suffers the very sort of harm that rendered the risk unreasonable, and where the plaintiff cannot prove which of the defendants was the but-for cause of her loss. This approach provides one way to understand the Supreme Court of Canada’s recent decision in Resurfice Corp. v. Hanke. We find support for our approach in various concepts that underlie negligence liability quite generally. These underlying concepts are normative in nature, and manifest core notions of justice and fairness. We argue that approaches to the problem of factual uncertainty that appeal to such normative principles to make sense of atypical cases of causation are in no way inconsistent with the nature and structure of negligence law. Rather, the opposite is true: in taking negligence law seriously as law, such approaches are instead reflective and supportive of it.
Keywords tort law  causation in the law  rights-based theories of private law
Categories (categorize this paper)
Options
 Save to my reading list
Follow the author(s)
My bibliography
Export citation
Find it on Scholar
Edit this record
Mark as duplicate
Revision history Request removal from index Translate to english
 
Download options
PhilPapers Archive


Upload a copy of this paper     Check publisher's policy on self-archival     Papers currently archived: 9,360
External links This entry has no external links. Add one.
Through your library Configure
References found in this work BETA

No references found.

Citations of this work BETA

No citations found.

Similar books and articles
Roderick Bagshaw (2012). The Edges of Tort Law's Rights. In Donal Nolan & Andrew Robertson (eds.), Rights and Private Law. Hart Pub..
David Enoch (2011). Reason-Giving and the Law. In Leslie Green & Brian Leiter (eds.), Oxford Studies in Philosophy of Law. Oxford University Press.
Analytics

Monthly downloads

Sorry, there are not enough data points to plot this chart.

Added to index

2011-01-28

Total downloads

0

Recent downloads (6 months)

0

How can I increase my downloads?

My notes
Sign in to use this feature


Discussion
Start a new thread
Order:
There  are no threads in this forum
Nothing in this forum yet.