Following two years qualifying as a Solicitor with Dundas & Wilson CS in Edinburgh, Martin Hogg was appointed as a Lecturer at the Faculty of Law at Edinburgh in 1995. In 2004 he was appointed Senior Lecturer. He has previously held office as Associate Dean of the Faculty of Law, as well as Director of Undergraduate Studies and Director of Teaching of the Law School. He currently chairs the Law School's Board of Studies, and is both the Deputy Director of Research and the Director of Quality Assurance and Enhancement (QAE) for the School.
2. Research fields:
His main areas of research lie in all aspects of the law of obligations, with current particular emphases on comparative obligations theory, promise, causation, and the concept of damage. He is the Scottish Reporter for the European Tort Law Yearbook, published annually by the European Centre of Tort and Insurance Law.
His book "Obligations" was published by Avizandum Publishing in 2003; a second edition followed in September 2006. His latest work, "Promises and Contract Law", published by Cambridge University Press in 2011, considers the role of promise in contract law from a comparative perspective. He has also published on lease law, information technology and the law, and privacy.
Research specialisations include:
(a) Comparative contract theory, and Promise:
Dr Hogg was on sabbatical leave from the University for all of academic session 2009-10 conducting research for his most recent book, "Promises and Contract Law: Comparative Perspectives". The subject of this research formed the basis for a recent workshop on Contract Law and Promises hosted by the Edinburgh Centre for Private Law on 21st March 2011 - http://www.law.ed.ac.uk/centreforprivatelaw/promisesandcontractlaw.aspx
(b) Donation/Gift
Dr Hogg is involved in onoging research and publications on the nature of donation/gift in a number of legal systems, especially in relation to whether donation can or ought to be conceived of in promissory terms (for publications in this field, see the publications list below).
(c) The concept of 'damage':
Dr Hogg is the Scots Law contributor to a project which operated under the auspices of the Austrian Academy of Science to investigate the nature of damage in European tort/delict law. The project's research findings were published in a book forming the second in the Digest of European Tort Law series (for details of this book, see publications listed below).
(d) Causation:
Dr Hogg's research into the field of causation has focused on the doctrine of causation within the law of obligations. His publications on the subject are listed below.
Dr Hogg addressed the international Causation Conference held at Aberdeen University in June 2009.
(e) Asbestos-related injuries:
In September 2008 Dr Hogg gave oral evidence before the Justice Committee of the Scottish Parliament in relation to the proposed Scottish legislation relating to liability for asbestos-related pleural plaques. The Committee's subsequently published report may be accessed by clicking here.
His article on the pleural plaques legislation (for publication details, see below) was cited to the court in the case Axa General Insurance Ltd v Lord Advocate.
3. Forthcoming publications and Conference presentations
Dr Hogg's forthcoming publications include:-
(i) a chapter on contract theory in a Cambridge University Press book entitled Commercial Contract Law: A Transatlantic Perspective (expected 2012);
(ii) an article in the Lloyd's Maritime and Commercial Law Quarterly on liability in contract/delict for losses caused through reliance on inaccurate route guides/maps; and
(iii) an analysis in the Edinburgh Law Review of three recent cases on liability in unilateral promise.
His forthcoming Conference presentations include a paper to be delivered to the European Tort Law Conference in Vienna (April 2012), and a paper to be delivered at the 2012 Society of Legal Scholars Conference in Bristol (September 2012) entitled "Unjust(ified) Enrichment Law in Australia: time to accept that the requirement to do justice needs more than a 'unifying legal concept'?
4. Supervising postgraduate students:
Dr Hogg is happy to receive proposals for the supervision of PhD students on any aspect of the law of obligations, especially in the fields of (i) obligations theory; (ii) contract theory; (iii) promise; and (iv) causation.
Any prospective student with a PhD proposal is welcome to contact him in writing, by email, or by telephone.
Promises and Contract Law is the first modern work to explore the significance of promise to contract law from a comparative legal perspective. Part I explores the component elements of promise, its role in Greek thought and Roman law, the importance of the moral duty to keep promises and the development of promissory ideas in medieval legal scholarship. Part II considers the modern contract law of a number of legal systems from a promissory perspective. The focus is on the law of England, Germany and three mixed legal systems (Scotland, South Africa and Louisiana), though other legal systems are also mentioned. Major topics subjected to a promissory analysis include formation of contract, third party rights, contractual remedies and the renunciation of contractual rights. Part III analyses the future role which promise might play in contract law, especially within a harmonised European contract law.
This is the second edition of a work which takes as its principal subject the interaction of the various obligations recognised at law. The new edition has been expanded, and chapter 4 (on Contract/Unjustified Enrichment) contains a wholly new treatment of the law of unjustified ernichment.
This work looks at the law of obligations primarily by considering the interaction of the various obligations of contract, unilateral promise, delict, and unjustified enrichment with each other. The book is organised for the most part around chapters which consider pairings of obligations, for instance contract and delict, contract and promise, and delict and unjustified enrichment. The book also considers the nature of obligations in general, analysing such features as the bilateral or unilateral nature of obligations, gratuitous and onerous obligations, and objective and subjective bases of liability.
Journal Articles
Martin Hogg 'Liability for Improperly Rejected Contract Tenders: Legitimate Expectations, Contract, Promise and Delict' (2012) Edinburgh Law Review pp 246-253
This article examines the potential liability of a party inviting tenders for a contract for improperly rejecting a tender. The approach of the courts in the recent decision of Petition of Sidey Ltd for Judicial Review of a decision of Clackmannanshire Council [2011] CSOH 194 is the focus of the discussion.
This article provides an analysis of the nature of donation in Scots Law, and considers matters such as the formation and constitution of donative acts, the obligations and remedies of the parties, revocation of donative acts, and mixed donations. It also considers the relationship between donation and promise in Scots law.
Martin Hogg 'Fundamental Issues for Reform of the Law of Contractual Interpretation' (2011) Edinburgh Law Review pp 406-22
This article considers the issue of reform of the principles of interpretation of contract, particularly in the light of the recent Law Commission Discussion Paper on Contractual Interpretation (SLC DP No. 147). A final draft version of the article may be downloaded below: see Working and Occasional Papers.
This article considers the essential nature of promise and donation, and examines to what extent donation has been seen as a promissory transaction in the legal systems of Ancient Rome, Louisiana, Scotland, South Africa, France, Germany, England and the US Common Law jurisdictions. It concludes by considering the treatment of donation in the Draft Common Frame of Reference (DCFR).
Martin Hogg 'MacDonald v Nicholson: A Case of Contractual Confusion' (2011) Edinburgh Law Review pp 255-9
This article considers the recent case of MacDonald v Nicholson, critiquing those portions of the judgment relating to the uncertainty of the contract price, the nature and extent of the breach, and the characterisation of 'restitutio in integrum' suggested by one of the parties.
This article analyses the 'portfolio method' for assessing contractual damages resulting from damage to the goodwill of a business brand, with particular reference to the judgment in Tullis Russell Papermakers v. Inveresk Ltd [2010] CSOH 148.
This analysis piece examines the recent decision of the Inner House of the Court of Session in Khaliq v Londis [2010] CSIH 13 on the subject of liability for wasted pre-contractual expenditure.
Martin Hogg 'Damages for Pecuniary Loss in Cases of Wrongful Birth' (2010) Journal of European Tort Law Vol 1, pp. 156-170
In this article, a comparative examination is made of the award of damages for pecuniary losses in cases of wrongful birth, such category including claims in respect of both healthy as well as disabled children. It is argued that such claims do not necessarily infringe the sanctity of human life, so long as it is the economic harm occasioned to parents by the birth of the child which is conceived of as the relevant harm rather than the birth of the child. Further jurisdictional harmonisation in this field, which is already more evident in respect of disabled children than healthy children, will depend upon a common understanding of the nature of the harm in question, as well as a willingness to find solutions to questions of the attribution of responsibility for harm discussed in the article.
This article argues that more explicit recognition ought to be accorded to unilateral promises in European private law. While such promises are given effect to, this is often by virtue of the fiction that they create contractual liability, a fiction which masks the true nature of liability as unilaterally undertaken. The argument is advanced through a comparison of the differing approaches of German, English and Scots law to unilateral promises. It is concluded that a wider and more explicit enforcement of unilateral promises would benefit the future development of European private law.
In this article it is argued that Scottish contract theory retains distinctive features which are not shared with the Common Law. The origins of this theory lie in the ‘mixed' nature of its contract law, a mixture established principally through the writings of Stair. That mix is not merely the traditional mix of Roman and Common Law typical of mixed legal systems, but a mix also of natural law ideas with a respect for the rational and free choices of the parties. Respect for free will is seen not just in certain contractual rules such as the absence of a requirement of consideration, but in the existence of a separate obligation of unilateral promise. It is argued that the nature of Scottish contract theory lends itself more easily to defence of the will theory, and that there has been an absence of enthusiasm for the adoption of competing theories of contract in Scotland. It is suggested by way of conclusion that some of the benefits provided by the Scottish structure could be of use to future development of the Common Law, albeit that the Common Law has typically shown itself averse to legal borrowings from its nearest neighbour.
Martin Hogg 'The Continuing Confused Saga of Contract and Error' (2009) Edinburgh Law Review Vol. 13, p286
This article examines the law of error as it relates to contract formation in the light of the decision of the Court of Session in Parvaiz v Thresher Wines [2008] CSOH 160. While the decision seems correct, the law's analysis and classification of error as it relates to contract formation remains confused, with competing typologies continuing to cause problems for practitioners, judges and students of the law.
Martin Hogg 'Intention to contract and wasted pre-contractual expenditure' (2009) Edinburgh Law Review Vol 13, p130
This article considers whether liability may arise between parties negotiating a contract for wasted expenditure incurred by one in the expectation of the formation of the contract. As the recent case of Aisling Developments Ltd v Persimmon Homes Ltd [2008] CSOH 140 shows, this is unlikely to be so unless unjustified enrichment provides a remedy. The facts of that case, which involved one party stringing the other along in bad faith, suggests perhaps that some further development of the existing liability for wasted expenditure (established in Walker v Milne) would be desirable.
Martin Hogg 'Contract Formation in the Electronic Age' (2009) Edinburgh Law Review Vol 13, p121
This article considers the continuing relevance of the traditional rules regarding when contractual communications take effect. In particular, it considers whether the postal acceptance rule applies to the transmission of a notice exercising an option under a contract, concluding that (unless the option is in offer form, or the contract otherwise so provides) it does not.
Martin Hogg 'Asbestos related conditions and the idea of damage in the law of delict' (2008) Scots Law Times (News) 207-212
This article examines the Damages(Asbestos-related Conditions)(Scotland) Bill, the intention of which is to overturn the decision of the House of Lords in Johnston v NEI International [2008] 1 AC 281. It is suggested that the Bill is flawed. It is wholly inconsistent with the common law concept of damage and runs counter to the position taken in jurisdictions with a greater experience of asbestos related conditions.
Martin Hogg 'Causation and Apportionment of Damages in Cases of Divisible Injury' (2008) Edinburgh Law Review Vol 12, pp 101-106
This article argues that in cases where a defender has caused a portion of a divisible injury or disease (such as asbestosis), such defender should be liable only for an equivalent portion of the damages due to the pursuer. Judicial insistence that such a defender be liable in solidum for the whole of the loss is unprincipled and unjust.
Martin Hogg 'Damages for breach of a keep-open clause: Douglas Shelf Seven Ltd v Co-operative Wholesale Society Ltd' (2007) Edinburgh Law Review pp 416-421
This article analyses the recent decision of the Court of Session in Douglas Shelf Seven v Co-operative Wholesale Society. The case considered whether the breach of a 'keep-open' clause by a tenant can be considered a causal factor of losses suffered by the landlord if a long period of time has passed since the breach began and other factors have arguably affected the landlord's position. The case also considers the point at which it is appropriate to assess damages in cases of ongoing breach of contract. It is suggested that the Court adopted the correct approach in relation to both of these questions.
Martin Hogg 'Re-establishing Orthodoxy in the realm of Causation' (2007) Edinburgh Law Review pp 8-30
This article reviews where the law relating to causation-in-fact in delict/tort currently stands in Scotland and England in the light of the recent House of Lords cases of Gregg v Scott and Barker v Corus. It argues that the majority in Barker v Corus were correct to recast the Fairchild/McGhee principle as one of loss of a chance, and that doing so reasserted the causally orthodox principles which had been overridden by the creation of the material increase in risk test in McGhee. It also argues that the House of Lords were correct in rejecting the claimant's appeal in Gregg, as to permit claims for lost of future expectation of life unconnected to any demonstrable existing physical harm would be to permit wholly speculative damages claims. The article concludes by considering the decision of the English Court of Appeal in Grieves v F T Everard, arguing that the Court was correct to exclude asymptomatic pleural plaques as actionable harm, and encouraging the House of Lords to uphold this view when it comes to consider the appeal against the Court of Appeal's decision.
Martin Hogg 'Unjustified Enrichment in Scots Law twenty years on: where now?' (2006) Restitution Law Review pp 1-20
This article argues that the past twenty years of development in the Scots Law of unjustified enrichment have been constructive ones, but the revolution in thought, both academic and judicial, remains incomplete. The available remedies have been clearly united under a principle of unjustified enrichment, but doubts remain as to whether a single action should be developed. It is argued, on the question of taxonomy, that development of a neo-civilian approach would be both logical and in accordance with the Roman roots of Scots Law. Temptations to codify should be resisted for the present, while the common law continues to demonstrate its capacity for inventive reform.
Martin Hogg 'The Role of Causation in Delict' (2005) Juridical Review Part 2, pp. 89-151
This article reviews the role of causation in delict, principally from a Scots Law viewpoint, but also through consideration of Common Law authorities. The appropriate test for determining causation-in-fact is examined, as well as matters affecting the attribution of responsibility for harm (what has traditionally been known as 'legal causation'). Specific consideration is given to cases involving causal indeterminacy.
Martin Hogg 'Duties of care, Causation, and the implications of Chester v Afshar' (2005) Edinburgh Law Review Vol. 9, pp 156-167
This article considers the decision of the House of Lords in Chester v Afshar [2005] 1 AC 134 on the question of the liability of a doctor in relation to failure to disclose a risk inherent in medical procedure. The article argues that the decision of the House of Lords in Chester can properly be explained by reference to the scope of the duty of care rather than by reference to causation.
Martin Hogg 'Scots Law and Informed Consent in Consumer Transactions' (2004) Tijdschrift voor Consumentenrecht pp130-134
Martin Hogg 'Paul v Olgilvy: A Lost Opportunity for Lost Chance Recovery' (2003) Edinburgh Law Review Vol. 7, p86
This article examines the decision in Paul v Ogilvy, the first Scottish case to examine recent English decisions on lost chances, arguing that the Scottish court missed an opportunity to apply this line of cases. It also argues that the calculation of damages in Paul v Ogilvy was flawed.
Martin Hogg 'Lowlands to Low Country - Perspectives on the Scottish and Dutch Law of Unjustified Enrichment' (2001) Ius Commune Lectures on European Private Law
This article, published in the Ius Commune series of comparative law articles, compares the Scots and Dutch law of unjustified enrichment, noting the many similarities of approach in the two systems.
Martin Hogg 'Scottish Law and the European Consumer Sales Directive' (2001) European Review of Private Law Vol. 9, pp 337-350
This article considers what changes will require to be made to Scots Law to bring it into line with the requirements of the European Consumer Sales Directive.
Hector MacQueen, Martin Hogg, Parker Hood '"Muddling Through? Legal Responses to E-Commerce From the Perspective of a Mixed System' (1998) Molengrafica 195-224
The article dealt with "the problems posed by sofware transactions, licences of information and electronic contracting" under Scots law, as well as the potential liability and remedies .
Martin Hogg 'Four recent cases of recompense' (1998) Edinburgh Law Review pp.357-365
This article argues that it is entirely consistent with a proper understanding of the hierarchy of obligations in Scots law that a pursuer should, in general, be able to exercise a choice of whether to sue in contract or delict, where a concurrence of actions applies.
Chapters
Martin Hogg 'Developing Causal Doctrine' in Richard Goldberg (eds) Perspectives on Causation (Hart Publishing, 2011) pp 41-56
This chapter considers the current approach of the courts to the determination of the causal element in delict/tort claims, and makes some suggestions as to why the courts have been reluctant to adopt the NESS test of causation popularised in recent academic analysis. Cases of causal indeterminacy are also examined, a case study being made of cases of misrepresentation.
Martin Hogg 'Delict in Scotland in 2010' in Helmut Koziol and Barbara Steininger (eds) European Tort Law Yearbook 2010 (De Gruyter, 2011) pp 523-543
This chapter analyses the current state of causal doctrine in the two Mixed Legal system of Scotland and Louisiana, and makes suggestions as to how the law might be developed in each. The chapter was favourably reviewed by Prof Shael Herman, in Vol. 85, issue 4, of the Tulane Law Review (see S. Herman, 'Odd Men In: The Fascinating Legal Kinship of Scotland and Louisiana').
This volume analyses thirteen cases, from the perspective of sixteen national European legal systems, in order to explore the legal nature of the precontractual phase and the liability which may follow a break-off of precontractual negotiations. The precontractual phase is difficult to characterise and analyse in either legal or practical terms. The negotiating parties have begun their journey together, but they are not yet in the relationship - the contract - which is their aim. The negotiations may fail after a lengthy period in which either party may have incurred significant expenses and invested time and effort. The break-off of the negotiations may come as a shock to one party where the negotiations were far advanced, or at least where there was nothing to suggest that they were not likely to lead to their fruition in the contract. The disappointed party is therefore likely to seek a remedy.
Martin Hogg 'Scottish National Notes' in E. Hondius, V. Heutger, C. Jeloschek, H. Sivesand, A. Wiewiorowska (eds) Principles of European Law: Sales (Sellier, 2008)
The Principles of European Sales Law is the latest contribution to European principles, or model law, from the Study Group on a European Civil Code. The Principles were produced by a drafting committee, and have been published together with national jurisdictional notes, the Scottish notes having been written by Hector MacQueen and Martin Hogg.
This volume of the Digest of European Tort Law is the first product of an ambitious research project: a collection of court decisions from almost all European jurisdictions on the most fundamental aspects of tort law. The cases are accumulated, structured, analysed and commented both from a national as well as a comparative perspective. Historical aspects are also considered, as are future trends, as outlined by current projects on the harmonisation of European tort laws. This comparative study is intended therefore not only to offer guidance for researching cross-border cases, but also to allow a discussion of such harmonisation projects on the basis of real-life case settings.
This first volume covers one key aspect of tortious liability – natural causation. The conditio sine qua non rule is examined and tested throughout all jurisdictions, in particular with an eye on whether and to what extent courts are willing to deviate from the strict concept of this formula.
Scottish contribution to a comparative casebook on Unjustified Enrichment
Martin Hogg 'Law Reform of Electronic Signatures and Encryption - A Scottish Perspective' in (eds) Molengrafica - European Private Law 1999/2000 (Koninklijke Vermande, 2000) pp25-44
Martin Hogg 'Secrecy and Signatures - Turning the Legal Spotlight on Encryption and Electronic Signatures' in Lilian Edwards, Charlotte Waelde Law and the Internet: A Framework for Electronic Commerce (Hart Publishing, 2000) pp37-54
This book chapter examines the history of leases in Scotland from the standpoint of four leases taken from various points in Scottish history from the fifteenth century onwards.
Martin Hogg 'Muddling Through? Legal Responses to E-Commerce from the perspective of a Mixed Legal System' in (eds) Europees Privaatrecht (Koninkliije Vermande, Lelystad, 1998) pp195-223
Martin Hogg 'Customs and Excise' in (eds) Stair Memorial Encyclopaedia (Butterworths and the Law Society of Scotland, 1996) Vol. 3
This contribution to the Hume Papers on Public Policy explores the extent to which Scots law protects individual privacy, and argues that the current protection it affords ought to be developed into a general delictual claim for invasion of privacy.
Notes and Reviews
Martin Hogg 'Review of Brian Coote, 'Contract as Assumption'' (2011) Edinburgh Law Review pp 315-318
A review of Professor Brian Coote's recent work 'Contract as Assumption' (Hart Publishing, 2010), which argues that there is much to commend in the thesis that in contracting parties mutually assume obligations to each other, while also arguing that Coote's theory is somewhat hampered by a continued adherence to the doctrine of consideration and the need to accommodate problems which the doctrine causes.
Martin Hogg 'Book Review: Geoffrey Samuel, 'Law of Obligations'' (2011) Edinburgh Law Review pp 149-151
Following the implementation of reforms in European Consumer Protection, the Sale of Goods Act 1979 now provides for two routes for a consumer to rescind a sale of goods contract for material breach. This article argues that this dual approach is confusing, and that a single remedial route should be provided for.
This article considers the two routes open to a landlord faced with a material breach of lease by the tenant, rescission for material breach or irritancy of the lease. (The discussion in the article was referred to approvingly in the judgment of Lord Pentland in Crieff Highland Gathering Ltd v. Perth and Kinross Council [2011] CSOH 78.)
Martin Hogg 'A Few Tricky Problems Surrounding Unilateral Promise' (1998) Scots Law Times pp.25-29
This article considers some fundamental aspects of the obligation of unilateral promise, in particular whether promises are always by nature gratuitous.
Martin Hogg 'Judicial Attitudes to Unjustified Enrichment: The Conservative Nature of Morgan Guaranty v. Lothian Regional Council' (1997) Edinburgh Law Review Vol. 1 pp.381-385
This article argues that, while the decision of the Court of Session in Morgan Guaranty Trust Co of New York v Lothian Regional Council 1995 SC 151 has taken the first tentative steps towards reforming the law of unjustified enirchment in Scotland, it represents a very conservative and cautious start.
Martin Hogg 'Data Protection: the Government's Proposals' (1997) Scots Law Times pp.277-279
Martin Hogg 'Lost Chances in Contract and Delict' (1997) Scots Law Times pp.71-76
This article looks at whether Scots law recognises a lost chance as a recoverable head of damage in contract or delict. It argues that Scots law does recognise such recovery, and that the law should develop along the lines of recent English authorities in this area.
Martin Hogg 'Privacy and European Data Protection Rights' (1996) Scots Law Times pp.127-134
Martin Hogg 'Privacy: a valuable and protected interest in Scots Law' (1992) Scots Law Times (News) 349
This article argues that while the law currently protects the right to privacy tangentially in a number of ways, Scots Law should develop a specific delict of invasion of privacy.
Working and Occasional Papers
Martin Hogg 'Fundamental Issues for Reform of the Law of Contractual Interpretation', School of Law Working Paper Series, 2011/36 (SSRN, 2011)
This article considers the issue of reform of the principles of interpretation of contract, particularly in the light of the recent Scottish Law Commission Discussion Paper on Contractual Interpretation (SLC DP No. 147).
This piece, which examines ideas from both US and European
contract law, considers whether there is any emerging consensus in contract
theory. It suggests that what is styled a 'co-operative will theory' would
provide a sound basis for developing the law, and that such a theory
reflects the emerging consensus in European legal harmonisation projects.
This presentation considered developments in the law of delict in 2011. The presentation will form the Scottish contribution to the forthcoming European Tort Law Yearbook 2011.
Martin Hogg 'Developments in the law of delict in Scotland in 2010' presented at 10th Annual Conference on European Tort Law, Vienna, 2011
This presentation considered developments in the law of delict in 2010. The presentation will form the Scottish contribution to the forthcoming European Tort Law Yearbook 2010.
Martin Hogg 'Promissory Theory and Contract' presented at Promises and Contract Law, Edinburgh Law School, 2011
In this paper I considered, from a comparative perspective, the role of promise in contract theory, as well as suggested the form which a 'revitalised will theory' as an explanation for contract law might take.
Martin Hogg 'Contract as Agreement, Promise, Reliance, Assumption of Obligation, a blend of some or all of these, or something else? Is there a path through the theoretical jungle?' presented at Current Issues in Commercial Contracts: Transatlantic Perspectives, Sheffield Law School, 2011
This paper considered various models of contract theory, and proposed a revitalised will theory (of the sort developed in my recent book 'Promises and Contract Law' (CUP, 2011) as the theory which most effectively explains modern contract law. Observations were made about the current consensus emerging in European contract law, noting the challenges thrown down to the Common Law in relation to privity of contract and the doctrine of consideration.
Martin Hogg 'Damages for Pecuniary Loss in Cases of Wrongful Birth' presented at Ninth Annual Conference on European Tort Law, Vienna, 2010
This paper provides a pan-European comparative view of national courts' attitudes to awarding damages for pecuniary loss in cases of wrongful birth (widely defined) and assesses the likelihood of harmonisation of the divergent national approaches. It is suggested that the crucial issues in any such attempted harmonisation will be the understanding of the concept of damage, and the question of the attribution of responsibility for consequences.
Martin Hogg 'The Scottish Doctrinal Perspective on Causation' presented at Perspectives on Causation, Aberdeen, 2009
The approach of the Scottish courts to causal doctrine remains traditionalist and under-developed, indicating little interaction with the current academic thinking in the field. This is partly no doubt the result of fewer opportunities for development given the small size of the Scottish jurisdiction, but also perhaps because of judicial nervousness at the perceived complexities of causal questions.
Future development of the law must abandon the traditional taxonomy of factual and legal causation. Instead, the NESS test must be accepted as the basic test of causation, with appropriate responses developed to deal with cases of causal indeterminacy which cannot be solved using NESS. Furthermore, academics must settle on agreed causal terminology if they are successfully to persuade courts to develop the law.
One area for future development centres on cases concerning the potential indeterminacy of counterfactual past human behaviour. Although strictly all such counterfactual behaviour of human beings is at least quasi-indeterminate, many cases are treated as if it can be inferred what human beings would have done in the absence of a defender’s negligent conduct.
One field where courts may be willing to draw such inferences is that of misrepresentation. An unresolved issue remains in relation to counterfactual past human behaviour is whether, in the application of counterfactual analysis, a court is to posit the most likely counterfactual behaviour of the particular parties involved (a subjective approach), or whether it should posit reasonable counterfactual behaviour (an objective approach).
Martin Hogg 'Causation in Scots and Louisianan Law' presented at Louisiana/Scotland Conference, Tulane University, New Orleans, Louisiana, USA, 2008
Martin Hogg 'Unjustified Enrichment in Scots Law Twenty Years On: Where Now?' presented at Society of Legal Scholars Annual Conference, 2005, University of Strathclyde, Glasgow, 2005
Martin Hogg 'Consumer Sales Law' presented at Scotland and The Netherlands: Workshops on Private Law and the Ius Commune, Old College, Edinburgh University, 2003
Martin Hogg 'Informed Consent in Consumer Contracts' presented at Ius Commune Research Schools Conference, 2003
Martin Hogg 'Encryption and Digital Signatures' presented at Law and the Internet - Regulating Cyberspace, 1999
Martin Hogg 'Concurrent Liability in the Scots Law of Contract and Delict' presented at Scottish Law Faculties Conference, 1997
Synopsis