Liability

This brief entry identifies the key choices of any tort system. The first question asks whether any given harm is “cognizable” at all. Typically physical injuries and interferences with advantageous relations by force or fraud fall into that category. Purely competitive injuries do not. Compensating for the former loss advances overall social welfare; for the latter does not. The entry then compares the desirability of strict liability and negligence for these cognizable injuries and argues that the strict liability system, subject to affirmative defenses based on assumption of risk or plaintiff's misconduct, outperforms a negligence system based either on reasonable foresight or some broad cost–benefit analysis. The negligence system, often defined by customary care, tends to be superior in consensual situations, such as medical malpractice, where it is too expensive for patients to fund a strict liability system.

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• Causation in the Law

  H L A Hart, Tony Honore•Causation in the law•1985

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