The Risk Pricing Principle : A Pragmatic Approach to Causation and Apportionment of Damages

At present, the method used to establish causation in negligence is ill-suited to the factual situations with which it has to deal. Currently, the causal inquiry conducted by the courts is binary in its nature in that it can support only two possible conclusions; a finding of liability or a finding of no liability. The main contention of this article is that, as it is often not possible to identify the single discrete cause of an injury, the causal questions raised in negligence cases are better dealt with on a basis that allows for more than these two potential outcomes. The risk pricing principle, outlined herein, is suggested as a non-binary alternative to the traditional method. In essence, it offers a special valuation rule to replace the conventional all-or-nothing approach to establishing causation. The main advantage of this principle is its ability to provide meaningful answers to even the most difficult of causal questions and to facilitate an apportionment of damages in appropriate situations. In allowing damages to be apportioned according to the relative risk contributions of each of the parties involved, the risk pricing principle recognises that claimants should not fail to establish liability just because their injury is indivisible. At the same time, however, it prevents defendants from bearing the total burden of liability where the contribution of their negligence to the final outcome might be little more than minimal