Introduction Preliminary points Hastening Death Common Purpose Two stage enquiry Factual Causation Too wide Legal Causation Individualisation Tests Foreseeability Tests … 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. 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. Yet this is hard to square with the harm-within-the-risk test. 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. An actor is liable for the foreseeable, but not the unforeseeable, consequences of his or her act. It is the stress on sufficiency that is supposed to end run the overdetermination problems. If the life preserver had been there, would anyone have thought to use it? Suppose a defendant intends to hit his victim in the face with a stick; suppose further he intends the hit to put out the victim’s left eye. Many of the leading cases on causation, most of the causal doctrines finding some acceptance in the law, and most of the theorizing about causation, originate in the law of tort and not in the criminal law. 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 second sort of test here is one that adopts general rules of legal causation. 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. As an element of the prima facie case, causation-in-fact must be proven by the prosecution beyond a reasonable doubt. the defendant’s breach in fact resulted in the damage complained of (factual causation) and • this damage should, as a matter of law, be recoverable from the defendant (legal causation) The claimant has the burden of establishing each of the above two factors. Course. Situation crimes. 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. A theft occurs, for example, only when an actor’s voluntary act causes movement (‘‘asportation’’) of the goods stolen. The basic test for causation is the ‘but for’ test. This is, to put it bluntly, preposterous. The cornerstone of the law on causation is that the prosecution must show that the defendant’s act was the substantial and operating cause of the harm. For example, it is not stated how one individuates sets of conditions. Such rules are adopted for various policy reasons also having nothing to do with causation, but this ‘‘rules-based’’ test differs from the last by its eschewal of case-by-case balancing; rather, per se rules of legal causation are adopted for policy reasons. 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. Why should we ask two culpability questions in determining blameworthiness? There has been considerable academic debate as to whether the Lee judgment alters the common law test for factual causation or not. Retributivists about punishment typically invoke a notion of ‘‘moral luck’’ according to which a defendant’s moral blameworthiness increases with success in his criminal plans (Moore, 1997, pp. One who intentionally or recklessly causes a harm that another only tries to cause or risks causing, is more blameworthy (Moore, 1997, pp. A second set of problems stems from an indeterminacy of meaning in the test, not from difficulties of factual verification. Unlike the ‘‘rules-based’’ test, here there is no multiplicity of rules for specific situations (like homicide, intervening wrongdoers, railroad fires, etc.). 267–278; Moore, 1999). It is a significant objection to the counterfactual theory that it blurs this crucial distinction. Has the nonmortally wounding defendant caused the death of the victim? To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant. If the defendant is charged with negligent homicide, for example, this test requires that the death of the victim be within the risk that made the actor’s action negligent. There is an ambiguity about causation that we have hitherto ignored but which does find intuitive expression in the decided cases. There are two distinct kinds of overdetermination cases. Proponents of this test urge that legal cause, properly understood, is really a mens rea doctrine, not a doctrine of causation at all. Legal Causation is usually expressed as a question of 'foreseeability'. 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). Critical Criminal Law RS 02 of 2018 . In other words, the question asked is ‘but for the defendant’s actions, would the harm have occurred?’ If the answer to this question … The causation element involves establishing that the defendant's negligence caused the claimant's harm, both factually and in law. As it happens, the victim turns suddenly as he is being hit, and loses his right ear. 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. 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. Therefore, every effect is also a cause of its cause? It could be merely established if the defendant’s conduct was an operating and substantial (not trivial) conduct, but not necessarily the only cause of the consequence when there are two or more legal causes of the same consequence. The scope of the defendant’s duty 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. Such stipulations are embarrassingly ad hoc, but they do eliminate otherwise troublesome counterexamples. The test asks, "but for the existence of X, would Y have occurred?" The Courts have defined the test for causation, which is split into factual and legal causation. The overinclusiveness of the test can be seen in at least four distinct areas. The criticism here is that the test is underinclusive. Legal and factual causation relates to whether or not the the defendant's act or omission i.e. 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. Such underinclusiveness can be seen in the well-known overdetermination cases (Moore, 1999; Wright, 1985, pp. One asks whether the claimant’s harm would have occurred in any event without, (that is but-for) the defendant’s conduct. The Constitutional Court in Dudley Lee v Minister of Correctional Services [2012] dealt with the liability of the minister for infection of a prisoner with tuberculosis during his incarceration. There must be both factual and legal causation. Why aren’t the two fires part of the same set, in which event neither is necessary? My jogging in the morning was not only necessary for my feet getting tired, it (sometimes at least) was also sufficient. Beginning in a series of articles in the 1950s and culminating in their massive book, Causation in the Law (1959), Herbert Hart and Tony Honore sought to describe a unitary conception of causation they saw as implicit both in the law and in everyday usages of the concept. 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. ‘‘Causation and the Flows of Energy.’’, KADISH, SANFORD. One thing can be more of a cause of a certain event than another thing. The part of the substantive criminal law commonly called the ‘‘special part’’ consists of several thousand prohibitions and requirements. 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. 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). It is sometimes urged that omission liability (that is, liability for not doing an act required by law) is noncausal, and there is a sense in which this is true. 388–390; Fletcher, 1998, pp. The test for legal causation is objective foreseeability. The long accepted test of factual causation is the ‘but-for’ test. 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. 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. The fourth set of problems arise because the counterfactual test seems too stringent in what it counts as a cause. The fourth and last sort of test here is the ‘‘harm-within-the-risk’’ test (Green). In most cases a simple application of the 'but for' test will resolve the question of causation in tort law. He lights the fuse to the bomb and leaves. 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? After reading this chapter you should be able to: ■Understand the usual means of establishing causation in fact, the “but for” test ■Understand the problems that arise in proving causation in fact where there are multiple causes of the damage ■ Understand the possible effects on the liability of the original defendant of a plea of novus actus interveniens, where the chain of causation has been broken ■Understand the test for establishing causation in law, reasonable foreseeability of harm, so that the damage is not too r… The third sort of test here is the well-known foreseeability test (Moore, 1997, pp. To see this, recall the logic of necessary and sufficient conditions. Sometimes causation is one part of a multi-stage test for legal liability. Yet the counterfactual test of causation would turn this question about an ability to prevent some harm, into a question of causing that which was not prevented. Lawyers adopt this shift in causal relata when they distinguish the defendant’s action as a cause, from some wrongful aspect of the defendant’s action which is not causally relevant. We offer high-quality assignments for reasonable rates. ‘‘The Problem of Reckless Attempts.’’, WRIGHT, RICHARD. 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). University. Therefore, the tiring of my feet did cause the tiring of my dog, contrary to our firm intuitions about epiphenomena. 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 … One concern for this view of causation, nonetheless, is the worry that it is incomplete with respect to the remoteness range of issues usually dealt with under the rubric of ‘‘legal cause’’ in the law. Special offer! (If it is not close enough, then he may yet be convicted of some lesser crime of battery or reckless endangerment.). 471–530). (Mill, 1965, book 3, chap. Innumerable remote conditions are necessary to the production of any event. There is no equivalently dominant test of legal or proximate cause. It is a much debated question whether the criminal law should be so result-oriented. Moreover, it is to do such work badly. 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). 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. Foreseeability is not the right question to ask in order to fit the harm in fact caused by a defendant to the type of harm he either intended to achieve or foresaw that he would cause. The long accepted test of factual causation is the ‘but-for’ test. As it happens, the fuse goes out. On the counterfactual analysis the defendant’s fire, shot, or noise was not the cause of any harm because it was not necessary to the production of the harm—after all, the other fire, shot, or noise was by itself sufficient. After all, did not the defendant foresee just the type of harm an instance of which did occur? Suppose the defendant nonmortally stabs the victim at the same time as another defendant mortally stabs the same victim; the victim dies of loss of blood, most of the blood gushing out of the mortal wound. When we say, ‘‘but for the defendant’s act of destroying the life preserver,’’ what world are we imagining? The defendant is also not liable merely because their conduct in fact caused the claimant’s harm. ‘‘The Proximate Consequences of an Act.’’, BUXTON, R. ‘‘Circumstances, Consequences, and Attempted Rape.’’, CARPENTER, CHARLES. 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. Yet the counterfactual analysis suggests just the opposite. Suppose a defendant culpably destroys a life preserver on a seagoing tug. It is far from obvious that causation is in fact a sufficiently discriminating relation that it can do this much work in assigning responsibility. Rather than pursue these, we should briefly consider modifications of the counterfactual test designed to end run some of these problems. 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 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. 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.’’. And so on. Typically, this restriction is married to some counterfactual conception of causation (Wright, 1985). However, this test is subject to limits and exceptions which are considered in this Practice Note. 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’’). This purportedly universal test for legal causation is usually justified by one of two policies: either the unfairness of punishing someone for harms that they could not foresee, or the inability to gain any deterrence by punishing such actors (since the criminal law’s threat value is nonexistent for unforeseeable violations). 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. 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. Yet his fire, shot, or noise joins the other one, and both simultaneously cause some single, individual harm. The ambiguity lies in the sorts of things that can be causes and effects, what are called the ‘‘relata’’ of the causal relation. 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. Sometimes, however, we might say, ‘‘it was the fact that the gun fired was of such large caliber that caused the victim to die.’’ That it was a large-caliber-gun firing is an aspect of the event. Indeed, it is arguable that the basic distinction between principal and accomplice liability depends in part on this conceptualization of causation (Kadish). 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. 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