Causation as an element of delict/tort in Scots and Louisiana law

INTRODUCTION At first glance, causation may not seem an obvious subject of enquiry for a comparative work on Scots and Louisiana private law. There is a tendency to assume that every jurisdiction takes the same approach to causation, and that in consequence there is little point to comparative causal analysis. As will be seen in this chapter, while this assumption may be true of the basic principles of causation, specific jurisdictional developments in Scotland and Louisiana have led to the adoption of different analyses in respect of certain causal problems, even if the result turns out to be the same in some of the problems. Causation may also seem an unusual topic for examination in that, unlike the other subjects covered in this volume, the Louisiana Civil Code contains no provision relating to causation, the law resting upon, and having been entirely developed by, the common law. This non-legislative approach to causation is found in Scotland too. Does this suggest that neither jurisdiction considers causation an especially important part of the delictual analysis? Not at all. Both jurisdictions view the causal issue as a crucial stage in a delict/tort action, and one to which their highest courts have turned their attention at various points. Indeed, although Scotland is a small jurisdiction, it was two Scottish appeals to the House of Lords, Wardlaw v Bonnington Castings and McGhee v National Coal Board, which were largely instrumental in defining the approach of courts across the United Kingdom to causation-in-fact in the twentieth century.