Now mostly harmless; once mostly about cause in Canadian tort law
Occams Razor, Hanlons Razor
This is a small test to see if anybody in the Canadian legal profession who ought to read this blog reads this blog and pays attention.
I doubt it – because the existence of this blog, and its usual content, is some evidence to the contrary – but I’m prepared to be surprised.
Consider this argument. Feel free to explain why it is flawed, if you think it is and believe you can.
If you can’t, then perhaps you’ll explain why you won’t accept it.
1. Factual causation exists where conditions exist sufficient to satisfy the applicable physical laws required for those conditions to cause – to bring about the existence of – some consequence.
2. A but-for causal relationship is nothing more than a description of a sufficient causal relationship in an instance where there is no other sufficient causal relationship. Counterfactual analyses are implicit – meaning they are necessarily undertaken, as required – in any valid analysis of sufficiency.
3. It necessarily follows the but-for test (whatever it means) is not needed to identify instances of factual causation.
4. It necessarily follows that where but-for (whatever it means) is used, in law, as a test for causation, it is used for some purpose other than identifying factual causation. This follows because we have already identified the existence of one or more factual causes.
5. In law, in the context of causation, the only other purpose the but-for test could have is assigning legal responsibility.
Cue Homer Simpson.
Anybody here see the houses of cards falling down?