Causality and Incentives with Multiple Tortfeasors

Henrik Lando, Urs Schweizer

Research output: Contribution to conferencePaperResearchpeer-review

Abstract

For a tortfeasor to be liable for a victim's loss, the tortfeasor's negligence must have caused the loss. In the context of multiple tortfeasors, this is generally taken to mean that but-for the tortfeasors negligence, the loss would not have occurred, given the acts by other tortfeasors. In the law and economics literature on causality, it has been claimed that this but-for test of causality does not jeopardize incentives for optimal precaution, not even when each tortfeasor's negligence is a sufficient cause of the victim's loss. We demonstrate that this claim is not generally true, and that it fails to hold in particular in the case of multiple sufficient causes. We suggest an alternative test of causality which inquires whether the victim's loss would have occurred were it not for the tortfeasor's negligence, if he other tortfeasors had taken due care. We demonstrate that this alternative test is compatible with optimal incentives subject to an unrestrictive condition.
Original languageEnglish
Publication date2017
Number of pages13
DOIs
Publication statusPublished - 2017
EventThe 29th EALE Conference 2017 - St. Gallen, Switzerland
Duration: 21 Sep 201723 Sep 2017
Conference number: 29
http://www.eale.nl/29th-eale-conference-st-gallen/

Conference

ConferenceThe 29th EALE Conference 2017
Number29
CountrySwitzerland
CitySt. Gallen
Period21/09/201723/09/2017
Internet address

Keywords

  • Multiple tortfeasors
  • Causality
  • But-for test
  • Optimal incentives

Cite this

Lando, H., & Schweizer, U. (2017). Causality and Incentives with Multiple Tortfeasors. Paper presented at The 29th EALE Conference 2017, St. Gallen, Switzerland. https://doi.org/10.2139/ssrn.2985532