Black Holes, Aether – Excerpt 1

The quoted paragraph is the last paragraph of the first part of “Black Holes, Aether”. The title of that part is: “Introduction: Negligence In The Air May Do.”

Part 2 of this article outlines the facts and result of Clements. Part 3 lays out the new explanation of the “impossibility” requirement provided in Clements: the requirement that it be impossible to validly use the but-for test to prove or disprove, on the balance of probability, that the negligence of any of the defendants whose negligence is alleged to have been a cause of the plaintiff’s injury was a cause. Part 4 discusses some of the issues that will have to be clarified in the meaning and application of the Clements’ explanation of the impossibility requirement. Part 5 discusses the significance of Clements to the other requirements of the material contribution to risk doctrine: “ambit of risk” and “fairness and justice”. Part 6 sketches some of the issues that will arise in claims for contribution where the basis of causation is material contribution to risk. Part 7 is a brief foray into the relationship between factual causation, material contribution to risk, and corrective justice. Part 8 deals with the status of the Athey material contribution to injury test after Clements. Part 9 discusses aspects of but-for doctrine as a result of Clements; particularly, the Supreme Courts affirmation that the Snell robust, pragmatic, commonsense approach to the application of the but-for test is the only method of properly applying the but-for test. The part also contains a brief discussion of a better test for factual causation on the balance of probability – one based on sufficiency rather than necessity: the NESS test. Part 10 sets out examples, by category. The categories show what should be the result of the factual causation inquiry if the current law is properly applied to the findings of fact made by the trial court. Part 11 contains general remarks about flaws in the Supreme Court’s approach to the issue of factual causation and brings the discussion to an end.

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