See Baker v Willoughby and Jobling v Associated Dairies. We will thus get the intuitive result that both Jay and Daisy are causes of Myrtle’s injury when they simultaneously collide, but that only Jay is a cause of Myrtle’s injury when Daisy watches from afar. A factor without which the result in question could not happen. Causation in criminal liability is divided into factual causation and legal causation. Mackie’s emphasis on sufficiency appeals to our intuition that causation is not simply about counterfactual “dependence,” but is also (at least in part) about the “production” of a given result.50×50. Id. At first glance, this abstract formulation may seem obvious. . . The theory that causation consists in one event’s (or set of events’) sufficiency in bringing about the occurrence of another is often associated with the philosopher J.L. The defendant argued that the fire brigade’s negligence broke the chain of causation, and meant that the defendant was not responsible for the fire on the second boat. at 255. Test yourself on the principles of causation and remoteness of damage. As this section will illustrate, however, while intrinsicness does appear at first to yield benefits for counterfactual analyses, it turns out, upon further examination, that intrinsicness and counterfactual accounts are fundamentally inconsistent. In order to do so, we will have to find a noncircular method of qualifying our sufficiency analysis to distinguish between causal and noncausal relationships. Such responses are unavailing, however, because we can easily modify the scenarios such that they differ only with respect to some clearly extrinsic factor. We can illustrate this problem by returning to a revised version of the scenario involving Jay, his morning coffee, and his roommate, Nick: Assume — in a slight variation of the original circumstances — that Jay is incapable of driving negligently if he has remembered to make coffee that morning. Hall’s basic approach is to begin with a given structure S and to imagine the myriad ways in which its intrinsic characteristics might be changed to create a new structure S′. at 299. .”). As in tort law, negligent medical treatment is considered a foreseeable result of the defendant’s actions. One notable candidate from the contemporary philosophical literature is Hall’s thesis of intrinsicness.61×61. Thus, on the counterfactual theory of causation, e did cause f, which is an embarrassing conclusion for that theory.”). The test asks, "but for the existence of X, would Y have occurred?" Furthermore, beyond the corner cases just discussed, counterfactual accounts raise fundamental analytical objections. . but it is trivially easy in other cases, such as those involving fraudulent misrepresentation.29×29. The distinction between factual and legal causation  Factual causation: demonstrating that the defendant’s breach of duty is causally related to the claimant’s actionable damage. rescue the theory [of but-for causation], nonetheless put aside the overdetermination cases as an unimportant and rare kind of aberrational side show.”). Indeed, if we return to the objections discussed in Part I, it looks as though intrinsicness applies equally to conventional accounts of but-for causation. The imposition of a non-backtracking condition is analytically distinct from the stipulation that causes precede their effects. 1965) (“An actor is subject to liability to another for battery if . Cf. 513, 513–14 (1986). The account is a capacious one, as it accords causal status to a wide range of legally irrelevant actions20×20. Both actual and proximate causation are elements of negligence, and proximate causation is what leads to liability, but only where all other elements are satisfied. See, e.g., Charles E. Carpenter, Concurrent Causation, 83 U. Pa. L. Rev. 2005). 1939) (discussing the problems inherent in putting questions of causation to the jury where the possibility that a defendant’s conduct caused a plaintiff’s injury is remote); City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110, 113–16 (Mo. How do you determine actual causation?First of all, you have to ask what actual causation is: “ However, it might be possible to recover for the loss of a chance where the breach causes the claimant to lose the chance to negotiate their way out of economic loss: Allied Maples v Simmons & Simmons [1995] 4 All ER 907. 625, 627 (Miss. In normal contexts both of these are true. Dan B. Dobbs et al., The Law of Torts § 33 (2d ed. See id. Hall, supra note 18, at 277. See Hall, supra note 18, at 288–90. . Law Inst. . Here the counterfactual theorist may respond that the two scenarios are not in fact intrinsically identical, because there must be some relevant difference (in Jay’s level of attention, for example) between the case in which Jay would have noticed Daisy and the case in which he would not have noticed her. Id. Despite the aforementioned benefits, sufficiency theories face significant challenges. Instead, the claimant only needs to show that the employer ‘materially contributed’ to his injury by increasing the risk: McGhee v National Coal Board [1973] 1 WLR 1. . The first objection — that counterfactual theories allow for temporally reversed causation40×40. . Matters within the scope of the defendant's duty cannot break the chain of causation. See Moore, supra note 4, at 412; Ned Hall & L.A. Paul, Causation and Pre-emption, in Philosophy of Science Today 100, 107–14 (Peter Clark & Katherine Hawley eds., 2003). Of the numerous tests used to determine causation, the but-for test is considered to be one of the weaker ones. This Note departs from mainstream complacency with but-for causation, exploring possible alternatives. What type of harm must a secondary victim of psychiatric harm in negligence show was foreseeable to establish that their loss was not too remote? 277, 277 (2005–2006) (“The NESS . Richard W. Wright, Causation in Tort Law, 73 Calif. L. Rev. Although promising, Hall’s strategy raises several questions. L.A. Paul & Ned Hall, Causation: A User’s Guide 17 (2013). Some might quibble that there will inevitably be subtle differences between Myrtle’s injury in each scenario (maybe because the weights or speeds of the two cars would have been slightly different), but with a little imagination we can always revise the scenarios to eliminate these differences. . . . See supra text accompanying notes 53–58. . How we identify the relevant near miss will of course be contentious,34×34. Once causal structures are properly identified in garden-variety cases, the sufficiency theorist can then invoke intrinsicness to accord causal status to relationships within more complex causal structures, so long as those relationships match the intrinsic structure of the aforementioned garden-variety cases.72×72. which will be the exclusive focus of this Note. Incorrect. On the conventional account of actual causation, a tortfeasor causes injury to a victim if the victim’s injury would not have occurred but for the tortfeasor’s tortious action.19×19. Legal and factual causation relates to whether or not the the defendant's act or omission i.e. the latter provides criteria for determining which actual causes are susceptible to legal liability.8×8. Causation has two prongs. Factual causation is the starting point and consists of applying the 'but for' test. If a claimant is injured by one defendant (‘A’) and is later injured in the same way by another defendant (‘B’), A is only deemed to have caused the injury up until the date of the second injury: Baker v Willoughby [1970] AC 467. It doesn’t take long, however, for the conventional account to run into problems it seems unable to solve. at 401 (“[O]n the counterfactual theory, c causing f means that c was necessary to f. Suppose that c causing e on a given occasion means not only that c was necessary to e but also that, given the laws and circumstances other than c, c could not have failed to cause e. That means that c, together with the other circumstances, was sufficient for e. This means that e was necessary for c. Yet, that means that e was also necessary for f — if e had not occurred, then c would not have occurred, and if c had not occurred, then f would not have occurred. But see Lawrence Crocker, A Retributive Theory of Criminal Causation, 5 J. Contemp. In other cases, especially those in which the tortious conduct consisted of marginally more risky conduct than is acceptable or in which the actor failed to take a precaution that would have reduced the risk to another, such as by warning of a danger, the counterfactual inquiry may pose difficult problems of proof.”). . When is the manner in which the harm was caused relevant to remoteness of damage? Clearly, CJ should be added to SJ and CD should be added to SD, since each driver’s actions are necessary to uniquely sufficient sets for Myrtle’s injury when the other driver’s actions are absent.75×75. 99, 103 (N.Y. 1928) (Andrews, J., dissenting) (“As we have said, we cannot trace the effect of an act to the end, if end there is. For example: If the defendant has a duty to stop the claimant hurting themselves, then suicide or self-harm will not break causation: Reeves v Commissioner of Police of the Metropolis  [2000] 1 AC 360. . See id. This will be true even if there is some event external to S′ — such as Jay’s prior failure to make coffee — that would render Jay’s negligent driving sufficient for Nick’s making coffee later in the day.67×67. In such a hypothetical, Maudlin suggests, it cannot be the case that a uranium-filled bomb was loaded onto the Enola Gay, even though a titanium-filled bomb was ultimately dropped. at 245. See Hart &Honoré, supra note 4, at 110 (“So when a negative answer is forthcoming to the question ‘Would Y have occurred if X had not?’ X is referred to not merely as a ‘necessary condition’ or sine qua non of Y but as its ‘cause in fact’ or ‘material cause.’”). See id. Paul & Hall, supra note 43, at 130. a healthy degree of skepticism is warranted in their absence.86×86. FACTUAL CAUSATION Jane Stapleton* The doctrinal parameters of the tort of negligence are remarkably open-textured which is why it has typically been in negligence cases that foundational formulations of factual causation have been made. If the claimant suffers a greater degree of loss than normal because of a special condition, for what losses can they recover? Such revision requires some creativity in cases of physical injury,28×28. at 103 (Andrews, J., dissenting) (“What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. Id. ) Factual causation: multiple causes If there are several possible alternative causes then a claimant must show that his harm was caused by the defendant's breach, as in Wilsher v Essex Area Health Authority. . It is with Moore’s criticism in mind that this Note seeks to depart from mainstream acceptance of but-for causation and to explore possible alternatives. To illustrate, we can look to the state of the world moments before Daisy slows down: at that time, Daisy’s driving appears to be a necessary part of a larger set of conditions — again including Myrtle’s position and velocity, the state of the roads, and other factors — that is sufficient for Myrtle’s injury.57×57. See Moore, supra note 4, at 412. A break in causation is known as novus actus interveniens. Incorrect. Hart & Tony Honoré, Causation in the Law (2d ed. Factual causation is established if ‘but for’ the breach the claimant would not have suffered the loss: Barnett v Chelsea & Kensington Hospital 1 QB 428. One empirical factor that may complicate the analysis here is that people’s emotional reactions to an injury appear to increase as it becomes easier for them to imagine the counterfactual scenario in which the victim is not injured. From E we can work backward to the earlier time t at which C occurs, adding to S all prior events that are causes of E. (On the sufficiency account, these include events like Nick being at various points on his morning trajectory, the existence of a certain amount of coffee grounds in the kitchen, and other factors.) There is not normally any need to show that the extent or manner in which the harm was caused was foreseeable: Hughes v Lord Advocate. See id. The Courts have defined the test for causation, which is split into factual and legal causation. . Michael Moore, For What Must We Pay? ‘dependence,’ is simply that: counterfactual dependence between wholly distinct events. See supra p. 2169. it seems at first that we can formulate a similar response to the one we articulated in the sufficiency context.88×88. App. In reality, the issue in Summers was one of factual uncertainty, in that the trial court was unable to determine which defendant caused the plaintiff’s injuries. In response to Moore, supra note 4, and Fumerton & Kress, supra note 15, Wright draws a distinction between “lawful sufficiency” and “causal sufficiency,” Wright, The NESS Account, supra note 51, at 297, and argues that the latter concept requires certain conditions to be “fully instantiated” in order for an event to count as a cause, id. Furthermore, Jay’s negligent driving is necessary to the sufficiency of this set, so long as the other members of the set are insufficient by themselves for Myrtle’s injury. The more different the scenario in which the defendant behaves nonnegligently, the plaintiff will argue, the more likely it is that the victim’s injury does not occur in that scenario. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26 reporters’ note cmt. The answer is no, because Jay’s negligent driving — if we ignore his prior failure to make coffee — is not necessary to any set of conditions at time t that is sufficient for Nick making coffee later in the day. Id. 2005) (“[T]he fact that . This area of law has recently undergone an As Professor Michael Moore writes in his magnum opus, Causation and Responsibility: “[T]he number of [corner] cases that actually occur in real life is irrelevant to the problem they pose for the counterfactual theory. Paul & Hall, supra note 43, at 124. See Tim Maudlin, A Modest Proposal Concerning Laws, Counterfactuals, and Explanations, in The Metaphysics Within Physics 5, 32 (2007). 2170–71, although these arguments, as noted, would require the counterfactual theorist to accept the existence of “small miracle[s],” Lewis, supra note 46, at 560. To establish negligence, the claimant must show that the defendant caused the loss they are seeking to recover. See Richard W. Wright, The NESS Account of Natural Causation: A Response to Criticisms, in Perspectives on Causation 285, 285 & n.1 (Richard Goldberg ed., 2011) [hereinafter Wright, The NESS Account]; see also Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27 cmt. If the claimants chances of avoiding an injury have been reduced from 48% to 21% by the defendant's negligence, will they be able to establish factual causation? at 914. 211 (1924); Fleming James Jr. & Roger F. Perry, Legal Cause, 60 Yale L.J. she trespasses only if she “intentionally enters or causes tangible entry upon the land in possession of another”;2×2. .” Id. 2174–75. . .”). 1939) (“It is not enough that negligence of one person and injury to another coexisted, but the injury must have been caused by the negligence.”). See generally Jan Faye, Backward Causation, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2017), https://plato.stanford.edu/archives/spr2017/entries/causation-backwards/ [https://perma.cc/G9X9-GDKU]. Only strict liability torts are exempt from this rule (eg trespass to the person). L. Rev. Generally, attribution of the legal quality of proximate causation is what gives rise to legal liability. Incorrect. The event must be unforeseeable: Nichols v Marsland. As its name suggests, the intrinsicness thesis appeals to the notion that “the causal structure of a process is . According to the dominant paradigm — articulated most notably by Professors H.L.A. — is undoubtedly important, but it turns out to apply equally to other accounts of causation (including the sufficiency accounts discussed below).41×41. Incorrect. In most torts, where a defendant breaches their duty towards the claimant, they are only liable if the claimant can establish that the breach in question has resulted in some harm, ie causation. Hart and Tony Honoré — causation comprises two components: “actual causation” (or “causation in fact”) and “proximate causation.”6×6. At time t1, Jay is crawling toward Myrtle at a pace of five miles per hour, while Daisy is coming in hot at a speed of twenty. We will hold to the side Wright’s objection, supra note 58, that only Jay’s driving is sufficient because the conditions required for Daisy’s causal sufficiency are not fully instantiated. There are often two reasons cited for its weakness. Somewhere a point will be reached when courts will agree that the link has become too tenuous — that what is claimed to be consequence is only fortuity.”); see also Palsgraf v. Long Island R.R. For an illustration that has become unfortunately topical, see Maudlin, supra note 44, at 27 (“If the Earth had exploded in 1987, Ivana would not have found out about Marla. Whereas the former condition holds prior events fixed, the latter stipulation allows prior events to vary, but denies that the variation is caused by the existence or absence of the future action. Although sufficiency accounts share some problems with counterfactual accounts, this Part argues that there may be solutions available to the former that are unavailable to the latter. University of Wales. However, in some circumstances it will also be necessary to consider legal causation Applying Wright’s NESS test to the examples above, we can see that Jay’s negligent driving is a cause of Myrtle’s injury in both scenarios: Jay’s negligent driving is part of a set of antecedent actual conditions — which includes Jay’s position and velocity, Myrtle’s location, the state of the roads, and other factors — that is sufficient for Myrtle’s injury. This section begins by discussing factual causation and the application of the ‘but for’ test, explaining the burden of proof and the all or nothing approach to damages. See Hart & Honoré, supra note 4, at 123. Again, however, we may trace it part of the way.”). See Dale T. Miller & Cathy McFarland, Counterfactual Thinking and Victim Compensation: A Test of Norm Theory, 12 Personality & Soc. In industrial disease cases, what must the claimant show to establish factual causation? 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