The approach of the Scottish courts to causal doctrine remains traditionalist and under-developed, indicating little interaction with the current academic thinking in the field. This is partly no doubt the result of fewer opportunities for development given the small size of the Scottish jurisdiction, but also perhaps because of judicial nervousness at the perceived complexities of causal questions. Future development of the law must abandon the traditional taxonomy of factual and legal causation. Instead, the NESS test must be accepted as the basic test of causation, with appropriate responses developed to deal with cases of causal indeterminacy which cannot be solved using NESS. Furthermore, academics must settle on agreed causal terminology if they are successfully to persuade courts to develop the law. One area for future development centres on cases concerning the potential indeterminacy of counterfactual past human behaviour. Although strictly all such counterfactual behaviour of human beings is at least quasi-indeterminate, many cases are treated as if it can be inferred what human beings would have done in the absence of a defender’s negligent conduct. One field where courts may be willing to draw such inferences is that of misrepresentation. An unresolved issue remains in relation to counterfactual past human behaviour is whether, in the application of counterfactual analysis, a court is to posit the most likely counterfactual behaviour of the particular parties involved (a subjective approach), or whether it should posit reasonable counterfactual behaviour (an objective approach).
|Publication status||Unpublished - 2009|
- Causation Delict