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Trial lecture - time and place
Adjudication committee
- Professor Margrethe Buskerud Christoffersen, University of Oslo (leader)
- Professor Andreas Bloch Ehlers, University of Copenhagen (1. opponent)
- Judge dr. juris Bjarte Askeland, Gulating Court of Appeal (2. opponent)
Chair of defence
Dean Ragnhild Hennum
Supervisors
- Professor Alf Petter Høgberg
- Professor Mads Andenæs
Summary
The subject-matter of the thesis
It is a general condition under Norwegian tort law is that there is causation between the ground of liability and the economic loss.The content of this requirement has typically been defined by way of general theories or teachings about causation. However, there seems to be inherent limits to how well a general and abstract requirement of causation can be defined in an authoritative manner, with a clear legal content.
In practice, the application of the requirement of causation may instead remind of a method, that is, as a way the judge reasons in order to arrive at a conclusion in the case at hand. In order to bring this to light, the dissertation presents tort law’s causation requirement in a historical, comparative and theoretical perspective.
Historical and comparative perspectives
The historical part covers the origin of the causation requirement in the history of ideas, its development for legal purposes in German legal sciences in the nineteenth century and the reception of the German legal theories and further historical development up to the present Norwegian tort law. This part includes a chapter on the history of the causation requirement in the common law countries.
The comparative part presents the formulation of the causation requirement in Denmark, Sweden, Germany, France, Belgium, England (and Wales) and the United States, as well as in supra-national European law and transnational European model rules.
Together, the historical and comparative parts show that it is not obvious that there is any traditional way of formulating the causation requirement, and that there is ample space to reflect more generally about what a requirement of causation in tort law entails.
Theoretical perspectives
The theoretical part of the dissertation presents an analysis and critique of tort law’s causation requirement. It takes as its starting point that the causation requirement regards questions of method, and more precisely the epistemological and psychological aspects of establishing causal explanations. Causal explanations are answers to why-questions and should be held separated from the legal and normative question of whether liability should be imposed or not.
Furthermore, the dissertation shows how it is necessary to distinguish between claims about causation in actual sequences of events and counterfactual hypotheses, and between different kinds of counterfactual hypotheses. Finally, the dissertation shows why one should be sceptical towards the possibility of characterising the causal relationship, or the causal factors, with general abstract labels such as ‘foreseeability’, ‘remoteness’ and ‘substantial/’significant’ and especially towards their usefulness as general devices to delimitate the scope of liability.
Overall, the dissertation illustrates that the application of the requirement of causation creates numerous difficulties. Still, it is necessary to retain it as an independent condition for liability. Its wide field of application keeps tort law at the frontier of new and unregulated risks in society.