European Causation in Tort Law: a Comparative Study with emphasis on Medical Law in the United Kingdom, Germany and France and Luxembourg

This purpose of this paper is to explore how the different jurisdictions under consideration here treat the legal notion of causation. These jurisdictions are the United Kingdom, Germany and France and Luxembourg. The problem of causation has been described as insoluble and I shall not be trying to solve it. Rather I shall consider how each of the jurisdictions here treats causation in the law, the better to ascertain whether there can be any common European idea of causation in this field. The reason for this is not only as two of the European projects aiming at codification in tort law seek to attempt if not strictly a definition of causation then recommendations in ways in which it could be refined. The European Court of Justice itself has been mandated to extract general principles common to European Union member states with regard to non-contractual obligations which can be applied when faced with a problem in tort law.

I must necessarily explain the notion of causation more generally before considering causation in the law so causation itself is understood. Within the sphere of causation in the law, there are a number of theories that I examine, which can be found, to a greater or lesser extent (or sometimes not at all), in one form or another, in the jurisdictions under consideration.

My conclusion is that there can be no common idea in causation from which principles in furtherance of any European codification projects may be stated. In most cases in court, a discussion of causation is not even entered into, as it is not controversial. There can be no “common sense” solutions in cases where causation is in doubt. I offer no principles. I make only one suggestion at the end with regard to experts’ reports.

The originality I hope to bring to this area of law is that this will be the first work that considers French (and Luxembourg), German and British law under one cover. I conclude by what seems to be the opposite view from many jurists in that, who hold that, however courts may arrive there “the results are [or will be] just the same” in causation.