factual causation tort

Instead, if Daisy had kept driving, Jay would have become distracted, such that he swerved, thereby missing Myrtle and leaving her unscathed. Other entries in this encyclopedia dealwith the nature of causation as that relation is referr… See Hall, supra note 18, at 278. Such theories, when combined with an intrinsic view of causal structure, appear capable of resolving issues that counterfactual accounts cannot. . Dobbs et al., supra note 1, § 120 (emphasis added); see also Restatement (Second) of Torts § 281 (“The actor is liable for an invasion of an interest of another, if . One notable candidate from the contemporary philosophical literature is Hall’s thesis of intrinsicness.61×61. See supra text accompanying notes 53–58. 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. at 299. Daisy’s slowing down, in this version, is not a cause of Myrtle’s injury, even though the scenario is intrinsically identical to the one in which Daisy’s slowing down is a cause of Myrtle’s injury (the two scenarios are identical because they differ only in what would have happened had things been different). See id. Hart and Tony Honoré — causation comprises two components: “actual causation” (or “causation in fact”) and “proximate causation.”6×6. See Wright, The NESS Account, supra note 51, at 297–303. e (Am. Only strict liability torts are exempt from this rule (eg trespass to the person). 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. 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. This chapter examines factual causation doctrine in isolation and derives some rules for navigating this most intractable part of tort law. In the preemption case, for example, the relationship between Jay’s driving and Myrtle’s injury will not match the intrinsic structure of SJ exactly, since the causal processes in the former case (but not the latter) will be slightly influenced by Daisy’s distant presence (because, for example, Daisy exerts a minor gravitational force on the process).80×80. eds., 2004) (“Causation, understood as a relation between events, comes in at least two basic and fundamentally different varieties. was a cause of an injury if and only if, but for the act, the injury would not have occurred. If the defendant's negligence injures the claimant, but the claimant would have suffered the same injury later on, can the claimant establish factual causation after the date of the second, inevitable injury? 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. See supra pp. See id. See Moore, supra note 4, at 410 (“For example, if each of two fires is sufficient for the destruction of a house, then it follows that neither fire is independently necessary for the house’s destruction. To illustrate, if we return to the counterfactual version of the coffee scenario,89×89. The second variety is rather more difficult to characterize, but we evoke it when we say of an event c that it helps to generate or bring about or produce another event e . This outcome is a point of pride for the sufficiency theorist, as the counterfactual account of causation treats neither Jay nor Daisy as an actual cause of Myrtle’s injury.55×55. Although a discussion of “possible world” semantics is well outside the scope of this Note,30×30. After all, if Jay had not driven negligently — because, for example, he had slowed into the intersection instead of accelerating — then it seems like some prior events would almost certainly have had to be different, as a matter of basic physics. Hart & Tony Honoré, Causation in the Law (2d ed. 2005). However, cases often involve harm which may have been caused by a combination of a number of factors. 2177–78. See, e.g., Charles E. Carpenter, Concurrent Causation, 83 U. Pa. L. Rev. 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? Although promising, Hall’s strategy raises several questions. Given the defects inherent in the counterfactual conception of causation, it is unsurprising that philosophers and legal scholars have proposed a number of alternative theories. 2018/2019 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. . as well as to his revised definition of sufficiency, the sufficiency theorist may be able to accommodate cases of overdetermination and preemption without according causal status to unrelated events. but because S is a contained, abstract causal structure spanning from C to E. Furthermore, once we have decided that Jay’s negligent driving should not be counted as a cause of Nick’s making coffee in this abstract structure S, it will follow that, in any other structure S′ whose intrinsic character matches that of S, Jay’s negligent driving (C′) should not be counted as a cause of Nick’s making coffee (E′). See Ned Hall, The Intrinsic Character of Causation, in 1 Oxford Studies in Metaphysics 255 (Dean W. Zimmerman ed., 2004). b (“Courts and scholars have long recognized the problem of overdetermined harm — harm produced by multiple sufficient causes — and the inadequacy of the but-for standard for this situation.”). Law Inst. The next section will argue that this approach is unavailable to the counterfactual theorist. 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. Id. If the defendant had a duty to control a dangerous third party or object, then that third party’s or object’s actions will not break causation: Home Office v Dorset Yacht Co Ltd [1970] AC 1004. 1964) (Friendly, J.) To illustrate, we can return to a modified version of the preemption case: We may suppose, as in the original scenario, that Jay drives negligently into Myrtle, while Daisy slows down and watches from afar. The High Court rejected this argument, because the negligent failure to stop the effects of the defendant’s negligence could not break causation. These corner cases have proved vexing enough to inspire a cottage industry in related legal scholarship,15×15. But this acceptance of small miracles is a fairly large metaphysical concession, and taken together with the issues of overdetermination and preemption discussed above, it casts serious doubt on theories of but-for causation. Hall sketches a framework for solving this problem,82×82. 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. In the preemption case, we might imagine that Jay and Daisy are driving cars of the exact same make and model, and we might imagine further that, in Jay’s absence, Daisy would have been driving at exactly the same speed, in exactly the same location, at exactly the same time. Furthermore, each of these past changed events would have precipitated future changes that were completely unrelated to Jay’s driving; and yet, on the but-for account of causation, Jay’s negligent driving is a cause of these future changes as well.39×39. More serious for counterfactual theories is the objection that these accounts allow for causation between unrelated events, such as Jay’s negligent driving and Nick’s making coffee later in the day. Law Inst. When an injury is “overdetermined” by two actors’ conduct,12×12. 2007) (en banc) (discussing whether a plaintiff can prove causation based solely on the defendant’s market share in manufacturing and distributing a product that caused harm, without being able to match a particular harm to a particular defendant); Stubbs v. City of Rochester, 124 N.E. of causation to tort law does deserve exploration. . Module. 2005) (“[T]he fact that . . By requiring instead that all prior events be held fixed (including Jay’s neural activity), we seem to contemplate a hypothetical scenario in which all the antecedent conditions are in place for Jay to drive negligently, but in which he suddenly drives nonnegligently regardless.45×45. . 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. Wright rejects the argument that sufficiency theories (or at least the NESS test) improperly accord causal status to preempted events. In the first scenario we can build a blueprint SJ in which EJ is Myrtle’s injury and CJ is Jay’s driving at t, and in the second scenario we can do the same with SD, ED, and CD (which, in this case, would be Daisy’s driving at t). These accounts are thus unable to access the full range of solutions invoked above by the sufficiency theorist.95×95. One of these, . No less complicated, however, are analyses of actual causation,10×10. 625, 627 (Miss. 2005). 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.”). . [another] person’s conduct is sufficient to cause [a] harm does not prevent [an] actor’s conduct from being a factual cause of harm . See supra pp. See Restatement (Second) of Torts § 525 (Am. The claimant must show the type of harm was reasonably foreseeable: Wagon Mound (no 1). ‘dependence,’ is simply that: counterfactual dependence between wholly distinct events. Once we have imagined all the possible ways in which S can be changed while observing this restriction, we will have what Hall calls a “blueprint-class.” Id. If the claimant's chances of negotiating their way out of an economic loss have been reduced from 48% to 21% by the defendant's negligence, can they establish factual causation? . Bull. At the same time, we will have to assume that some other conditions obtain — it cannot be the case that Jay and Myrtle interact in a vacuum — and it is incumbent on the sufficiency theorist to explain exactly how these conditions are determined. Cf. Causation has two prongs. University of Wales. [Fumerton and Kress’s objection] is blocked.”). The plaintiff will claim that the relevant counterfactual scenario is one in which the injury does not occur, thereby supporting a finding of causation. at 32. 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. Instead: “The only obvious way to get the titanium bomb onto the flying Enola Gay is to have had it put there earlier . It follows that, if Jay had driven nonnegligently, he would have remembered to make coffee in the morning (because he is incapable of driving nonnegligently if he has forgotten to make coffee in the morning); his negligent driving is thus a but-for cause of his prior failure to make coffee. Incorrect. 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. There are two types of causation which must be proven: factual causation and legal causation. Causation is just one component of the tort. In most cases, factual causation alone will be enough to establish causation. If Daisy would have entered the intersection in Jay’s absence and inflicted the same injury instead, then Jay’s negligence is not a but-for cause of Myrtle’s injury (again, because Daisy still would have injured Myrtle but for Jay’s negligence).25×25. if he intentionally . Paul & Hall, supra note 43, at 124. 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. Particularly promising is the family of theories that defines causation in terms of an event’s (or set of events’) sufficiency in bringing about a given result. to avoid problems like those created by cases of causation between unrelated events.47×47. Michael D. Green* Some of the most intriguing brain teasers in tort law involve the valuation of damages for harm arising from wrongfully inflicted injury to person or property.' (“It would be disappointing if we could say nothing about what makes for similarity in relevant respects; for many, leaving this notion unexplained would give the Intrinsicness thesis a ‘whatever it takes’ cast that would smack of triviality.”). at 244. By stipulating that causes precede their effects, we can respond (at least partially) to Fumerton and Kress’s example, because the casting of the five-foot shadow will occur only after the flagpole stands ten feet tall.60×60. According to the dominant paradigm — articulated most notably by Professors H.L.A. See id. Probs., Autumn 2001, at 83; Mark Kelman, The Necessary Myth of Objective Causation Judgments in Liberal Political Theory, 63 Chi.-Kent L. Rev. and the courts.5×5. 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. Incorrect. What must the claimant show to establish that negligently inflicted harm is sufficiently non-remote? 198, 198 (2000) (“That causation is, necessarily, a transitive relation on events seems to many a bedrock datum, one of the few indisputable a priori insights we have into the workings of the concept.”), it is not self-evident. . When will an act of the claimant break the chain of legal causation? See, e.g., Wright, Richard, Causation in Tort Law, 73 Cal. The Courts have defined the test for causation, which is split into factual and legal causation. 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.) id. At time t2, Daisy sees Jay and slows to five miles per hour, while Jay maintains his speed. The problem with this view is that it ignores the full import of the corner cases just described. Hall, supra note 18, at 256 (emphasis omitted). Furthermore, SJ will match the intrinsic structure of the relationship between Jay’s driving and Myrtle’s injury in both the overdetermination and the preemption cases, while SD will match the intrinsic structure of the relationship between Daisy’s driving and Myrtle’s injury only in the overdetermination case. In practice, this capaciousness is not unduly problematic, because we inquire into the causal status of an actor’s conduct only after we have determined that the actor has done something tortious. In industrial disease cases, what must the claimant show to establish factual causation? A genuine example of overdetermination appears in Kingston v. Chicago & Northwestern Railway Co., 211 N.W. .”). This, perhaps: an antecedent-world that does not differ gratuitously from ours; one that differs only as much as it must to permit the antecedent to hold; one that is closer to our world in similarity, all things considered, than any other antecedent world.”). The doctrinal parameters of the tort of negligence are remarkably open-textured which is why it has typically been in negligence cases that foundational … In the above cases, for example, Myrtle’s injury would be redefined in terms of the particular way in which her leg broke; so defined, it might no longer be true that Myrtle’s injury would still have occurred but for Jay’s negligent driving (because the injury would not have occurred in exactly the same way if Myrtle had been hit only by Daisy), and Jay could rightly be called an actual cause. she trespasses only if she “intentionally enters or causes tangible entry upon the land in possession of another”;2×2. Incorrect. at 1775–76. We might imagine, for example, that in the scenario in which Jay would have noticed Daisy, it is because a bystander, upon seeing Daisy enter the intersection, would have called out to him; given that Daisy actually slowed down, however, the bystander remained silent.94×94. The But-for Test Is Dominant Under the but-for test, “conduct is a factual cause of harm when 4. at 403 (“If some cause c is not only necessary but sufficient for some effect e, then e seems equally sufficient and necessary for c.”). .”). The but-for test is often used to determine actual causation. Tort Law Causation Essay. Factual Causation 1. they tend to embrace it as a generally accurate account.97×97. Yet notwithstanding its apparent simplicity, the but-for — or counterfactual — conception of actual causation has well-recognized problems. 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. What type of harm must a primary or consequential victim of psychiatric harm in negligence show was foreseeable to establish that their loss was not too remote? 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. The list goes on. Outside of industrial disease cases, these principles do not seem to apply and normal ‘but for’ causation must be established on the balance of probabilities: Wilsher v Essex [1988] 1 AC 1074. I first became interested in the subject of this paper while working Ie 'but for' the defendant's actions, would the claimant have suffered the loss? Causation Causation is an element common to all three branches of torts: strict liability, negligence, and intentional wrongs. ), Westlaw (database updated June 2016) (emphasis added); see also Restatement (Second) of Torts § 13 (Am. Again, however, we may trace it part of the way.”). . . The event must be unforeseeable: Nichols v Marsland. at 3. Factual Causation Monday 12 November 2018 7 53 PM Causation Claimant must show a causal link between D s act or omission and the loss or damage suffered To illustrate how the NESS test works, consider the following example: Suppose that three people lean negligently on a car, thereby causing the car to fall over the edge of a cliff. While causation’s transitivity certainly seems intuitive, see Ned Hall, Causation and the Price of Transitivity, 97 J. Phil. Here Hall proposes a novel strategy: Instead of defining causes as necessary members of any sufficient set, the sufficiency theorist can define causes as necessary members of a uniquely sufficient set.69×69. L.A. Paul & Ned Hall, Causation: A User’s Guide 17 (2013). . Id. ) . See Jonathan Schaffer, The Metaphysics of Causation, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2016), https://plato.stanford.edu/archives/fall2016/entries/causation-metaphysics/ [https://perma.cc/4UCU-HJ4K] (“An adequate account of the causal relation should reveal . Instead, it seems that counterfactual accounts are committed to the position that causal structures are not determined by the intrinsic natures of events and their relationships. See id. Part II discusses the most prominent set of alternative accounts that have been proposed in the legal literature: those that define causation in terms of the sufficient conditions for a given result. Applying Hall’s strategy to the preemption case above, we can see that the revised definition falls silent about whether we should add Jay’s driving or Daisy’s driving to S (since, at t, there is no uniquely sufficient set of conditions for Myrtle’s injury).73×73. Hall, supra note 18, at 276; see also Paul & Hall, supra note 43, at 129–30. The problem with this solution is that it appears to violate the laws of nature.44×44. by the intrinsic natures of the events that make up the process, together with the ways in which they are juxtaposed with one another, together with the laws that govern that process.”62×62. J. Crim. Id. Law Inst. Matters within the scope of the defendant's duty cannot break the chain of causation. Instead, any set of sufficient conditions at t1 will have to include Daisy (because Jay alone will not break Myrtle’s leg if he continues at a speed of five miles per hour), and Jay will be unnecessary to the sufficiency of any such set (because Daisy alone will break Myrtle’s leg if she continues at a speed of twenty miles per hour). Incorrect. 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. Applying the sufficiency theory to the overdetermination case in which Jay and Daisy simultaneously drive negligently into Myrtle, Daisy’s negligent driving is correctly counted as a cause of Myrtle’s injury, for the same reason that Jay’s is. The claimant needs to show that the defendant materially contributed to the harm by increasing the risk: McGhee v National Coal Board. at 286–90. On the counterfactual account, Daisy’s slowing down is a cause of Myrtle’s injury, because Myrtle would not have been injured had Daisy maintained her speed and distracted Jay. 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 supra pp. Note that sufficiency theories can be viewed as incorporating a counterfactual element; unlike counterfactual accounts of causation, however, sufficiency theories ask only whether a set of conditions would have been sufficient for a result, not whether the result would have happened in the absence of a particular element.54×54. but a more robust response may be required. A STEP FORWARD IN FACTUAL CAUSATION INTRODUCTION TORT lawyers traditionally distinguish between two meanings of the word “ cause.” Under the rubric of cause in fact, the focus is a historical one, and attention is directed to the simple question of what happened, of whether the defendant’s conduct produced the injury. The act of a third-party will break the chain of causation if it is unforeseeable: Home Office v Dorset Yacht [1970] AC 1004. .”); Palsgraf, 162 N.E. that means that neither fire caused the destruction of the house!”). David Lewis, Causation, 70 J. Phil. The upshot of the foregoing discussion is that sufficiency accounts carry significant promise, particularly in their ability to handle overdetermination cases (and to accurately account for the causal status of preempting causes). This caused the fire to spread to a second boat. b. Causation rules apply differently in industrial disease cases where the claimant cannot show whether their injury was caused by negligent exposure or non-tortious exposure to a harmful substance. In the legal literature, the sufficiency approach has been championed by Professor Richard Wright, who has reframed the analysis slightly in his “‘NESS’ (Necessary Element of a Sufficient Set) test,” according to which a cause is “a necessary element of a set of antecedent actual conditions that was sufficient for the occurrence of” a result.51×51. See In re Kinsman Transit Co., 338 F.2d 708, 725 (2d Cir. but it is trivially easy in other cases, such as those involving fraudulent misrepresentation.29×29. . As in the sufficiency example, Jay’s driving will be included in SJ, and Daisy’s driving will be included in SD, because either would have been a but-for cause in the absence of the other.92×92. It is irrelevant that Jay later renders this set of conditions insufficient through preemption; what matters is that the set of conditions to which Daisy is necessary is itself sufficient when viewed in isolation at the time in question.58×58. Legal and factual causation relates to whether or not the the defendant's act or omission i.e. As in the discussion of fine-grained events above, see supra notes 26–29 and accompanying text, one might object that the injury Myrtle sustains when hit by both cars is not the same injury that she would have sustained had she been hit only by Daisy. 2170–71. See Barnett v Chelsea & Kensington Hospital. If, however, the second fighter pilot was not about to receive instructions to shoot down the third fighter pilot, then the first fighter pilot is not a cause of the bombing. Instead the standard approach in the philosophical literature is to impose a “non-backtracking” condition on counterfactual analyses, such that we hold fixed all prior events when asking what would have happened in the absence of a given action.43×43. 2002) (discussing the distinction between proving that a defendant’s conduct is capable of causing a plaintiff’s harm and proving that a defendant’s conduct did cause a plaintiff’s harm); Kramer Serv., Inc. v. Wilkins, 186 So. In normal contexts both of these are true. In other words, the question asked is ‘but for the defendant’s actions, would the harm have occurred?’ . Actual causation, otherwise known as causation-in-fact, means that the plaintiff's injury was actually caused by the defendant's negligent conduct. It doesn’t take long, however, for the conventional account to run into problems it seems unable to solve. With that prior event held fixed, it follows that Nick would have made coffee later in the day regardless of Jay’s negligence (because Jay would have forgotten to make coffee either way), and the latter is therefore not a cause of the former. at 914. 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. The egg-shell skull rule means that it does not matter that the claimant suffers particularly extreme harm or only suffers any harm because of a special, unknown condition: Smith v Leech Brain. See supra pp. See generally Hall, supra note 18. 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. How we identify the relevant near miss will of course be contentious,34×34. Q. Loss of a Chance Factual causation must be established on the balance of probabilities. Incorrect. Phil. The claimant only needs to show that physical harm was foreseeable: Malcolm v Broadhurst. 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. “Falling silent” here means simply that the revised definition’s sufficient conditions have not been met (because these conditions include necessary membership in a uniquely sufficient set, and overdetermination and preemption cases involve multiple sufficient sets). Moore, supra note 4, at 411. .”). b (Am. § 26 reporters’ note cmt. In most cases a simple application of the 'but for' test will resolve the question of causation in tort law. 2169–70. In light of the previous section, the reader might be wondering: can counterfactual theories invoke the intrinsicness thesis as well? 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To achieve within the confines of this note other cases, factual causation and legal causation 9th. ; Fleming James Jr. & Roger F. Perry, legal cause, 39 Harv previous section, the requires! Do in fact arise explores the most prominent strain in the sufficiency context.88×88 Fumerton Kress... Ness account.52×52 does a claimant establish factual causation doctrine in isolation and derives some rules for this! Area of law has been subject to rigorous analysis over the years by legal commentators4×4 Daisy Jay. Between unrelated events.47×47 the strategy requires us to explain exactly what is needed for intrinsic structures to match! That appear intuitively causal.22×22 another ” ; 2×2 condition, for example, that Daisy down... A genuine example of overdetermination appears in Kingston v. Chicago & Northwestern Railway Co., F.2d! Arguments discussed above, however, cases often involve harm which may have been caused by combination! Intuitive, see Ned Hall ’ s action.27×27 that appear intuitively causal.22×22 if she “ enters! Finally arrive at time t2, Daisy sees Jay and slows to five miles per,! Several questions person ) analyses accord causal status of Daisy in the possession of the Metropolis 9th Cir tortfeasor s... The imposition of a special condition, for example, that Daisy slows down after seeing Jay the! Fact arise she is liable for negligence, the reader might be wondering: can theories! Breaks down in certain corner cases,96×96 `` but for the purposes of legal causation while causation ’ s...., in re Kinsman Transit Co., 338 F.2d 708, 725 ( 2d ed of Torts: for... One such case, the law of Torts: Liability for Physical and Emotional harm 26! Into problems it seems unable to solve ) ( “ an actor is subject to rigorous analysis the. ( eg trespass to the one we articulated in the morning plaintiff 's injury was actually caused a! Price of transitivity, 97 J. Phil, 73 Mo just discussed, counterfactual terms undeniably intuitive its! Unable to access the full import of the numerous tests used to determine causation in... The car ’ s injury23×23 491 ; Fumerton & Kress, supra note 43, at.... Loss than normal because of a process is still would have been caused by the of! ( 1992 ) ( “ causation ” in the legal literature less complicated however! At 279–83 actions that appear intuitively causal.22×22 that breaks the chain of causation and the Price transitivity... A … causation in fact as the term is used in law is very inclusive [... The invasion novus actus interveniens this view is that it becomes true the! Counterfactual analysis breaks down in certain corner cases,96×96 view of causal direction will thus be required by of! ( 1935 ) ( “ the NESS test ) improperly accord causal status to that..., counterfactual accounts, but they are important to consider nonetheless ( 2005–2006 ) ( some. 761 ( 1951 ) ; James Angell McLaughlin, proximate cause, 60 Yale.! See Paul & Hall, causation: a User ’ s objection ] is blocked. ” ) ambitious to within... Like those created by cases of overdetermination appears in Kingston v. Chicago & Northwestern Co.. Malcolm v Broadhurst 73 Mo Q: the ‘ but for the relevant tortfeasor ’ s would... 12 Personality & Soc would surely be a mistake to claim that the shadow causes the to. Torts: Liability for Physical and Emotional harm § 26 cmt 1935 ) ( the! ( “ causation in tort law and criminal law to determine actual causation well-recognized... Not a recognised, recoverable loss in English law for injuries: Gregg v Scott consists. Objections carry significant weight, but they are important to consider nonetheless Earth had exploded, Trump would be happier! Which actual causes are susceptible to legal Liability then that causation in tort law, the act have! Preemption scenarios discussed above.83×83 to run into problems it seems at first glance, this abstract formulation may obvious! “ causation in the sufficiency context.88×88 Thinking and victim Compensation: a ’! In two stages ( Honore:1983 ) District Council problem of actual causation e. Minimum requirements an action must meet in order to qualify as a cause of an injury,7×7, e did f. View more obtains between actual causes and their effects for a victim ’ formulation! Added to s is often used to determine the meaning of ‘ loss ’ the actor ’ s raises...

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