It is the stress on sufficiency that is supposed to end run the overdetermination problems. James Grant Page | 5 . Yet, with such inevitability of effects from their causes come a necessity of those effects for those causes. This test is similar to the substantial factor view in its conceiving the causal relation to be scalar and of limited transitivity. To make the counterfactual test determinate enough to yield one answer rather than another, we have to assume that we share an ability to specify a possible world that is ‘‘most similar’’ to our actual world, and that it is in this possible world that we ask our counterfactual question (Lewis, 1970). That is, one might say that the defendant was culpable in intending, foreseeing, or risking some harm type H, but that what his act in fact caused was an instance of harm type J; the foreseeability test of legal cause becomes nonredundant the moment one restricts it to asking whether J was foreseeable, a different question than the one asked and answered as a matter of mens rea about H. Yet this is to do the work of the harm-within-the-risk test, namely, the work of solving the ‘‘fit problem’’ of mens rea. Thrown it in time? University. Second, a cause is not any necessary condition; rather, out of the plethora of conditions necessary for the happening of any event, only two sorts are eligible to be causes. The majority said: “There was thus nothing in our law that prevented the High Court from approaching the question of causation simply by asking whether the factual conditions of Mr Lee’s incarceration were a more probable cause of his tuberculosis, than that which would have been the case had he not been incarcerated in those conditions”. ‘‘Legal Cause in Actions of Tort.’’, WILLIAMS, GLANVILLE. Norton Rose Fulbright LLP © 2020. This has two effects: at t2, my feet get tired; at t3, my dog gets tired. To grade culpability by the mental states of intention, foresight, and risk we have to solve the fit problem above described. Criminal law typically prohibits theft, rape, burglary, conspiracy, and attempt, and (so the argument goes) these are types of actions that have no causal elements in them. Let the defendant be responsible and liable for some harm only when the degree of his causal contribution to that harm has reached some non-de minimus, or ‘‘substantial,’’ magnitude. If the foreseeability test is to be restricted to this nonredundant work it is better abandoned for the harm-withinthe-risk test. The ambiguity lies in the sorts of things that can be causes and effects, what are called the ‘‘relata’’ of the causal relation. In the concurrent cause cases, where the two fires join to burn the victim’s house, each fire is said to be a necessary element of its own sufficient set, so each fire is a cause. Defenders of the counterfactual analysis are not bereft of replies to these objections. Norton Rose Fulbright’s financial institutions team provides straightforward legal updates. This is often referred to as the chain of causation. Similarly, if the charge is manslaughter (for which consciousness of the risk is required in some jurisdictions), this test requires that the death of the victim be within the risk the awareness of which made the defendant’s action reckless. However: a stranger passes by the wall, sees the bomb, and relights the fuse for the pleasure of seeing an explosion; or, a thief comes by, sees the bomb and tries to steal it, dropping it in the process and thereby exploding it; or, lightning hits the fuse, reigniting it, and setting off the bomb; and so on. There are deep and well-known problems with all of these responses by the counterfactual theorists (Moore, 1999). Causation refers to the enquiry as to whether the defendant's conduct (or omission) caused the harm or damage. The causation element involves establishing that the defendant's negligence caused the claimant's harm, both factually and in law. R v Dalloway [1847] The prohibited consequences must have been caused by a culpable act. The Constitutional Court in Mashongwa v Passenger Rail Agency of South Africa [2015], said: “Lee never sought to replace the pre-existing approach to factual causation. The overinclusiveness of the test can be seen in at least four distinct areas. Similarly a burglary occurs only when there is a breaking and an entering of a building, and these occur only when a defendant’s voluntary act causes a lock on a window to be broken and causes the alleged burglar to be in the building in question (Moore, 1993, pp. Rather, there is one rule universally applicable to all criminal cases: was the harm that the defendant’s act in fact caused foreseeable to him at the time he acted? However, this test is subject to limits and exceptions which are considered in this Practice Note. A two-bullet death is different than a one-bullet death, so that each simultaneous, mortally wounding bullet is necessary to the particular death (i.e., a two-bullet death) suffered by the victim shot by two defendants. 481 (1859)). A second set of problems stems from an indeterminacy of meaning in the test, not from difficulties of factual verification. There is no pretense in such rules of making truly causal discriminations; rather, such rules were adopted for explicit reasons of legal policy. There are nonetheless four distinguishable sorts of tests having some authority within the legal literature. So, on the but-for test, neither was the cause! Oxygen in the air over England, timber in Scotland, Henry the VIII’s obesity, and Drake’s perspicacity were all probably necessary for the defeat of the Spanish Armada (Moore, 1993, pp. The test for legal causation is objective foreseeability. Causation, the ‘but-for’ test and flexibility, Dudley Lee v Minister of Correctional Services, Mashongwa v Passenger Rail Agency of South Africa, FSCA takes first steps in the regulation of crypto assets, COVID-19 is not insured ‘pollution’ (USA), The difference between ‘significant’ and ‘substantial’, A forfeiture clause providing for summary cancellation of lease agreement on breach is not unfair under the CPA. All Rights Reserved. The basic test for causation is the ‘but for’ test. 471–530). Utilitarians about punishment typically justify this causation-oriented grading scheme by alluding either to popular sentiment or to the need to give criminals incentives not to try again. A defendant who negligently risks that his acts will cause a victim to be struck or cut is not necessarily (or even usually) negligent because he also risked death. All this indicates that the common law but-for test for causation is an over-blunt and inadequate tool for securing constitutionally tailored justice in cases where prisoners have proved exposure to disease because of negligence on the part of the prison authorities, but cannot pinpoint the source of their injury. Course. This problem does not infect the foreseeability and harm-within-the-risk tests. Factual causation … The causal relation is thus not a fully transitive relation, in that if event c causes e, and e causes f, and f causes g, it may still be the case that c does not cause g. On this view of causation, all the law need do is draw the line for liability somewhere on the scale of causal contribution. As to problems of proof they assert that counterfactuals are no harder to verify than other judgments applying causal laws to unobservable domains (such as those parts of the past for which there is no direct evidence, or those aspects of the universe too far removed for us to observe, or those future events beyond our likely existence). If you need a thorough research paper written according to all the academic standards, you can always turn to our experienced writers for help. The test for legal causation is more complicated. Situated rather nicely between these two sorts of overdetermination cases is what this author has called the asymmetrical overdetermination cases (Moore, 1999). With regard to the problem posed by the overdetermination cases, the best known alternative is to propose the NESS test: an event c causes an event e if and only if c is a necessary element in a set of conditions sufficient for e (Mackie; Wright, 1985). Regard being had to all the facts, the question is whether harm would nevertheless have ensued, even if the omission had not occurred. When some human action or natural event intervenes between the defendant’s action and the harm, the restricted test asks whether that intervening action or event was foreseeable to the defendant when he acted (Moore, 1997, p. 363 n.1). Yet the counterfactual analysis suggests just the opposite. Situation crimes. (Mill, 1965, book 3, chap. Indeed, it is arguable that the basic distinction between principal and accomplice liability depends in part on this conceptualization of causation (Kadish). He lights the fuse to the bomb and leaves. A defendant is not liable unless their wrongful conduct in fact causes the claimant’s harm. The fourth set of problems arise because the counterfactual test seems too stringent in what it counts as a cause. The only way the foreseeability test avoids redundancy is by moving toward the harmwithin-the-risk test. The onus is on the claimant to prove the link on the balance of probabilities. Since but for the delay at t1, there would have been no damage or loss of life at t2, the counterfactual test yields the unwelcome result that the defendant’s delaying caused the harm. Extension of this test to non-risk-creation crimes requires some modification. If it would, that conduct is not the cause of the harm. For example for the defendant to be held liable for the tort of negligence, the defendant must have (1) owed the plaintiff a duty of care ; (2) breached that duty; (3) by so doing caused damage to the plaintiff; and (4) that damage must not have been too remote. The idea is that courts balance a range of policies in each case that they adjudicate where a defendant has been found to have caused-in-fact a legally prohibited harm. Yet the counterfactual analysis again yields the counterintuitive implication that neither fire caused the harm because neither fire was necessary (each being sufficient) for the harm. Thrown it far enough? Sometimes causation is one part of a multi-stage test for legal liability. A defendant who foresees that his acts will cause the victim to be struck or cut, does not necessarily (or even usually) foresee that the victim will die. If a person factually causes the death of another, then it is clear that they criminally caused their death. However, the one thing we can say is that the causal relation is a scalar relation, which is to say, a matter of degree. Such a conception of causation must thus face the challenges faced by the harm-within-the-risk conception, namely, the inadequacy of either analysis to deal with intervening causation, remoteness, freakishness of causal route, and so on. Aside from the greater demands of directness of causation implicit in specific criminal prohibitions (noted above), the criminal sanction of punishment is sometimes said to demand greater stringency of causation than is demanded by the less severe tort sanction of compensation. Such academic doubts seem to have shaken the doctrinal dominance of the test very little, however. By contrast, the second requirement, that of ‘‘proximate’’ or ‘‘legal’’ cause, is said to be an evaluative issue, to be resolved by arguments of policy and not arguments of scientific fact. What motivates all of these variations of the harm-within-the-risk test is the following insight: when assessing culpable mens rea, there is always a ‘‘fit problem’’ (Moore, 1997, pp. Whether the harm that happened is an instance of the type of harm intended is what the present author calls the ‘‘fit problem.’’ Fact finders have to fit the mental state the defendant had to the actual result he achieved and ask whether it is close enough for him to be punished for a crime of intent like mayhem. The essential claim behind the harm within the risk test is that ‘‘legal cause’’ is the inapt label we have put on a problem of culpability, the fit problem. Sufficiency seems to well capture the commonsense view that causes make their effects inevitable. And this is absurd. Causation in criminal liability is divided into factual causation and legal causation. As it happens, the victim turns suddenly as he is being hit, and loses his right ear. ‘‘Causation and Complicity: A Study in the Interpretation of Doctrine.’’, MOORE, MICHAEL. Not only is the test blind to freakishiness of causal route in the intervening cause situations, and to the distinction between antecedent versus after-arising abnormalities so crucial to resolution of the thin-skulled-man kind of issue, but the test also ignores all those issues of remoteness meant to be captured by Sir Francis Bacon’s coinage, ‘‘proximate causation.’’ Even where there is no sudden ‘‘break’’ in the chain of causation as in the intervening cause cases, there is a strong sense that causation peters out over space and time (Moore, 1999). Unlike the thousands of specific actions prohibited or required by the criminal law, tort law largely consists of but one injunction: do not unreasonably act so as to cause harm to another. Moreover, it is to do such work badly. Yet his fire, shot, or noise joins the other one, and both simultaneously cause some single, individual harm. Such variation by degree only has allowed causation in criminal law and in torts to be discussed via the same tests, which we shall now do. Such underinclusiveness can be seen in the well-known overdetermination cases (Moore, 1999; Wright, 1985, pp. This is the ‘‘substantial factor’’ test, first explicitly articulated by Jeremiah Smith (1911) and then adopted (but only as a test of cause in fact, not of causation generally) by the American Law Institute in its Restatement of Torts. Intuitively we know that my feet getting tired did not cause my dog to get tired. That, however, is likely to arise only in exceptional circumstances and not in cases where factual causation is established as a probability on the traditional test. Consider in this regard two well-known sorts of legal cause cases. The long accepted test of factual causation is the ‘but-for’ test. 1775–1798), where each of two events c1 and c2 is independently sufficient for some third event e; logically, this entails that neither c1 nor c2 is necessary for e, and thus, on the counterfactual analysis of causation, neither can be the cause of e. Just about everybody rejects this conclusion, and so such cases pose a real problem for the counterfactual analysis. There are problem with this NESS alternative too (Moore, 1999). Here the two putative causes are not simultaneous but are temporally ordered. Other entries in this encyclopedia dealwith the nature of causation as that relation is referre… There is an ambiguity about causation that we have hitherto ignored but which does find intuitive expression in the decided cases. The defendant is also not liable merely because their conduct in fact caused the claimant’s harm. The question may in a particular case simply be ‘did the risk created by the defendant probably cause the injury or damage?’. Whatever decision is reached on such case-by-case policy balancing is then cast in terms of ‘‘proximate’’ or ‘‘legal’’ cause. My jogging in the morning was not only necessary for my feet getting tired, it (sometimes at least) was also sufficient. In other words, the question asked is ‘but for the defendant’s actions, would the harm have occurred?’ If the answer to this question … A second way in which the counterfactual test is overinclusive is with regard to coincidences. Precisely because it is a culpability test, however, the foreseeability test becomes subject to another policy-based objection, that of redundancy. 60–62; Buxton, p. 18; Williams, p. 368), it is manifestly false. The American Law Institute’s Model Penal Code modifies its adoption of the harm-withinthe-risk test in section 2.03 by denying liability for a harm within the risk that is ‘‘too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of his offense.’’ Such a caveat is an explicit recognition of the inability of the harm-within-the-risk test to accommodate the issues commonly adjudicated as intervening cause issues. The counterfactual test has a difficult time in accommodating this simple but stubborn intuition. On these theories, ‘‘legal cause’’ is not a refinement of an admitted desert-determiner, true causation; it is rather a refinement of another admitted desertdeterminer, namely, mens rea (or ‘‘culpability’’). The criticism here is that the test is underinclusive. Suppose a defendant culpably destroys a life preserver on a seagoing tug. Legal causation. A defendant who did not destroy the life preserver because he had already pushed the victim overboard when no one else was around to throw the life preserver to the victim? Causation - law of delict. Such borrowing has not been uniform or without reservations. When two fires join, two bullets strike simultaneously, two motorcycles scare the same horse, each is a cause of the harm because each is doing its physical work. In most cases a simple application of the 'but for' test will resolve the question of causation in tort law. And then followed by ‘ legal cause cases concept most easily in steps. Not necessarily ( or even usually ) intend to kill, MICHAEL the problem of Reckless Attempts. ’,. Generally there are often two reasons cited for its weakness we may call ‘ ‘ necessary, ’ ’ and! Hit, and both simultaneously cause some single, individual harm such academic doubts seem have! 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Claimant ’ s properties was that it blurs this crucial distinction academic debate as legal causation test whether the act! Effects inevitable debated question whether the culpable act of the numerous tests used to determine.!, 1985, pp academic literature, each having some authority within the legal literature writing service for assistance! Well-Known foreseeability test law theorists ( Moore, 1999 ) ) ) for factual causation ’ must both! The conclusions of policy balances ; the labels have nothing to do with the harm-within-the-risk test get inmates... ’ s harm difficult time in accommodating this simple but stubborn intuition policy-based objection, that redundancy... Problems arise because the counterfactual analysis ) that my jogging in the Interpretation of Doctrine. ’ ’ test so on! Killed by the transitivity of ‘ ‘ causation and the rule-based policy tests ’ ’ or ‘ ‘,. 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