The third set of problems arise because the counterfactual test seems too lenient in what it counts as a cause. 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. Feel free to contact our writing service for professional assistance. Therefore, by the transitivity of ‘‘necessary,’’ my feet getting tired was necessary to my dog getting tired. 60–62; Buxton, p. 18; Williams, p. 368), it is manifestly false. Firstly, ‘factual causation’ must be established and then followed by ‘legal causation’. The long accepted test of factual causation is the ‘but-for’ test. CONCLUSION When speaking about the criterion of legal causation, think of all test and place it under the umbrella judgement of S v Mokgheti which includes the public policy consideration of fairness, justice and reasonableness. 5, sec. The Constitutional Court in Dudley Lee v Minister of Correctional Services  dealt with the liability of the minister for infection of a prisoner with tuberculosis during his incarceration. Thus, on the counterfactual test both my stabbing the victim through the heart and your failure to prevent me (though you were half a world away at the time) are equally the cause of the victim’s death. There are often two reasons cited for its weakness. Situated rather nicely between these two sorts of overdetermination cases is what this author has called the asymmetrical overdetermination cases (Moore, 1999). One suspects some such view is often applied by jurors, but unless theorists can spell out the general nature of the relation being intuitively applied by jurors (as is attempted in Fair), this test tends to collapse to the metaphysically sparer substantial factor test. For crimes of strict liability, where no mens rea is required, the test requires that the harm that happened be one of the types of harms the risk of which motivated the legislature to criminalize the behavior. Standard doctrines of intervening causation hold that the defendant did not legally cause the death of the guard (Hart and Honore, 1985, pp. Like the foreseeability test, this test purports to be a test of legal cause universally applicable to all criminal cases. More recently the Constitutional Court, in BJ de Klerk v Minister of Police, in a judgment primarily dealing with legal causation, again said that the ‘but-for’ test is ordinarily to be applied to determine factual causation, but quoting Lee said that in an appropriate case the test ‘should be relaxed’. A second set of problems stems from an indeterminacy of meaning in the test, not from difficulties of factual verification. 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. Very generally there are four sorts of problems with the counterfactual test for causation in fact. For crimes requiring purpose or specific intent for their mens rea, the test asks whether the harm that happened was an instance of the type of harm the defendant intended to achieve by his action. For example, it is not stated how one individuates sets of conditions. Legal causation requires proof that the defendant’s conduct was sufficiently connected to its occurrence. He lights the fuse to the bomb and leaves. In negligence cases (which are among the most popular types of cases in the legal system), there are four parts that law students try to cram into their brains before an exam: duty, breach, causation and damages.Let’s break those down and specifically talk about the third one. Because the harm-within-the-risk question asks a simple type-to-token question—was the particular harm that happened an instance of the type of harm whose foresight by the defendant made him culpable—the test is blind to freakishness of causal route. After all, did not the defendant foresee just the type of harm an instance of which did occur? We must thus not seek the meaning of causation in extrinsic policies; rather, the legal concept of causation will serve its grading function only if the concept names some factual state of affairs that determines moral blameworthiness. The test is in the service of the right policy in its seeking of a true desertdeterminer, and the test does not ask a redundant question. 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. Innumerable remote conditions are necessary to the production of any event. Adequate Cause test Direct Consequence a.k.a Proximaty test Reasonable foreseeability test Intent test S v Mokgheti Remoteness refers to the legal test of causation which is used when determining types of loss caused by a breach of contract or duty which can be compensated by the award of damages.There is a difference between legal causation and factual causation because of that question arises whether damages resulted from breach of contract or duty. James Grant Page | 5 . We do need to know, counterfactually, if the defendant had not omitted to do some action, whether that action would have prevented the harm in question. In most cases a simple application of the 'but for' test will resolve the question of causation in tort law. If the consequences are not caused by the defendant’s culpable act, then legal causation is not made out. Rather than pursue these, we should briefly consider modifications of the counterfactual test designed to end run some of these problems. Norton Rose Fulbright LLP © 2020. The first requirement is that of ‘‘cause-in-fact.’’ This is said to be the true causal requirement because this doctrine adopts the scientific notion of causation. 268–269), but we should be loath to say that each of these was equally the cause of that defeat. law of delict. When we say, ‘‘but for the defendant’s act of destroying the life preserver,’’ what world are we imagining? Sometimes causation is one part of a multi-stage test for legal liability. The general ‘‘functionalist’’ approach of such tests to legal concepts is correct: we should always ask after the purpose of the rule or institution in which the concept figures in order to ascertain its legal meaning. For if some act of the defendant did cause the absence of a certain harm, then the defendant cannot be said to have omitted to have prevented the harm. If the foreseeability test is to be restricted to this nonredundant work it is better abandoned for the harm-withinthe-risk test. 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? 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 counterfactual test has a difficult time in accommodating this simple but stubborn intuition. The usual assumption is that causal relata are whole events; in the phrase ‘‘the firing of his gun caused the death of the victim,’’ the descriptions ‘‘the firing of his gun’’ and ‘‘the death of the victim’’ each name events. The test seems to isolate something we seem to care a lot about, both in explaining events and in assessing responsibility for them, namely, did the defendant’s act make a difference? My dynamite exploding at t1 may cause your mother minks to kill their young at t2, yet your mother minks killing their young at t2 did not cause my dynamite to explode at t1. When one nonmortal wound is inflicted together with a larger, mortal wound, the victim dying of loss of blood, each is a cause of death because each did some of the physical work (loss of blood) leading to death. In the pre-emptive case, where the fires do not join and one arrives first, the first fire is a necessary element of a sufficient set, and so is the cause; but the second fire is not because absent from its set is the existence of a house to be burned. Other entries in this encyclopedia dealwith the nature of causation as that relation is referre… Thus, when an unlicensed driver injuries a pedestrian, they say: ‘‘while the driving did cause the injuries, the fact that it was unlicensed driving did not.’’. A restrictive notion of causation can be found by restricting things eligible to be causal relata to aspects of a defendant’s action that make him culpable (either by foresight, intent, or risk). Yet counterfactuals by their nature are difficult to prove with that degree of certainty, for they require the fact finder to speculate what would have happened if the defendant had not done what he did. One event is epiphenomenal to another event when both events are effects of a common cause (Moore, 1999). If you need a thorough research paper written according to all the academic standards, you can always turn to our experienced writers for help. If the life preserver had been there, would anyone have thought to use it? 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). The whole event was the firing of the gun; one of that event’s properties was that it was a large-caliber-gun firing. Course. Technically, ‘… the material contribution to risk exception to “but for” causation is not a test for proving factual causation, but a basis for finding “legal” causation where fairness and justice demand deviation from the “but for” test’ (the Clements case at para 45). Proponents of this test urge that legal cause, properly understood, is really a mens rea doctrine, not a doctrine of causation at all. There is an ambiguity about causation that we have hitherto ignored but which does find intuitive expression in the decided cases. An actor is liable for the foreseeable, but not the unforeseeable, consequences of his or her act. Why should we ask two culpability questions in determining blameworthiness? It is a time honored maxim of criminal law (as well as tort law) that ‘‘you take your victim as you find him.’’ Standard translation: no matter how abnormal may be the victim’s susceptibilities to injury, and no matter how unforeseeable such injuries may therefore be, a defendant is held to legally cause such injuries. (If it is not close enough, then he may yet be convicted of some lesser crime of battery or reckless endangerment.). Not according to the counterfactual analysis: given the sufficiency of the mortal wound, the nonmortal wound was not necessary for, and thus not a cause of, death. Criminal codes typically prohibit citizens from doing certain types of action and sometimes (but much less frequently) require citizens to do certain types of actions. To begin with, the test fails to distinguish acts from omissions, in that both can be equally necessary to the happening of some event (Moore, 1993, pp. The oldest of the proposals conceives of causation as a metaphysical primitive. The ''but for'' test and ''proximate cause'' test are used to determine causation. Yet notice that to assess whether a defendant is liable for an omission to prevent some harm, a causal judgment is still necessary: we have to know that no act of the defendant prevented (i.e., caused the absence of) any such harm. 345–347). The onus is on the claimant to prove the link on the balance of probabilities. ‘‘Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts.’’. Legal and factual causation relates to whether or not the the defendant's act or omission i.e. One asks whether the claimant’s harm would have occurred in any event without, (that is but-for) the defendant’s conduct. Home > Insurance > Causation, the ‘but-for’ test and flexibility. In addition, this proposed conception faces metaphysical hurdles not faced by the harmwithin-the-risk analysis, for it must make sense of the idea of aspects of events being causes, rather than events themselves. 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. Such labels are simply the conclusions of policy balances; the labels have nothing to do with causation in any ordinary or scientific sense. Such sorts of tests also found a temporary home in tort law with its ‘‘first house rule,’’ according to which a railroad whose negligently emitted sparks burned an entire town was only liable for the house or houses directly ignited by its sparks, not for other houses ignited by the burning of those first burnt houses (Ryan v. New York Central R.R., 35 N.Y. 210, 91 Am. 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. And so on. 469–476). Causation - law of delict. The only way the foreseeability test avoids redundancy is by moving toward the harmwithin-the-risk test. Here the two putative causes are not simultaneous but are temporally ordered. Thus, the common law rule for homicide was that death must occur within a year and a day of the defendant’s harmful action, else the defendant could not be said to have legally caused the death. 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. This view handles easily the overdetermination cases that are such a problem for the conventional analysis. 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). It is also sometimes said that many prohibitions of the criminal law do not involve causation. Sufficiency seems to well capture the commonsense view that causes make their effects inevitable. Although this view has been elevated to a dogma accepted by both American and English criminal law theorists (Fletcher, 1978, pp. The first are the concurrentcause cases: two fires, two shotgun blasts, two noisy motorcycles, each are sufficient to burn, kill, or scare some victim. Still, the usual form such reservations take is for criminal law to modify causation doctrines in tort by a matter of degree only (Moore, 1997, p. 363 n.1). All Rights Reserved. There must be both factual and legal causation. The appeal of this test stems from this fact. They may balance certain ‘‘social interests’’ like the need for deterrence with certain ‘‘individual interests’’ like the unfairness of surprising a defendant with liability. 363–399). Indeed, the search is for a unitary concept of causation that is so discriminating that it can do the work that on the conventional analysis is done by both cause-in-fact and legal cause doctrines. 267–278; Moore, 1999). The term ‘substantial’ makes it clear that the defendant’s act need not be the sole cause but the act must be more than just a … Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. Caesar’s crossing the Rubicon may well be a necessary condition for my writing this article, but so many other events have also contributed that Caesar’s causal responsibility has long since petered out. The primary means of establishing factual causation is the ‘but for’ test. 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. If event c is not only necessary for event e but also sufficient, then (of necessity) e is also necessary for c. In such a case c and e are symmetrically necessary conditions for each other and, on the counterfactual analysis, each is therefore the cause of the other. As to the problems of omissions and asymmetry through time, they assert that we should simply stipulate that a cause is not only a necessary condition for its effect, but it is also an event (not the absence of an event) that precedes (not succeeds) the event which is its effect. Reasonable foreseeability of damage of the relevant type (Wagon Mound) is required to establish that the claimant’s injury is not too remote. 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. This is often referred to as the chain of causation. 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). 213–225). Typically, this restriction is married to some counterfactual conception of causation (Wright, 1985). Factual causation … The ambiguity lies in the sorts of things that can be causes and effects, what are called the ‘‘relata’’ of the causal relation. Dec.49 (1866)). As it happens, the fuse goes out. On this view the nature of causation is to be found in the mechanistic concepts of physics: matter in motion, energy, force (Beale; Epstein; Moore, 1999). R v Dalloway  The prohibited consequences must have been caused by a culpable act. The temptation to accept the dogma (of noncausal criminal actions) stems from the fact that many of the results the criminal law prohibits are usually brought about rather directly. The test for legal causation is more complicated.