Tests of Proximate Cause

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The Tests of Legal Cause in Tortious Acts Law of Torts- I Submitted by: Submitted to: Vrinda Vinayak Mr. Prem Chand Roll No. 76LLB14 2014 National Law University, Delhi

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Tests of proximate cause in tortious acts

Transcript of Tests of Proximate Cause

Page 1: Tests of Proximate Cause

The Tests of Legal Cause in

Tortious Acts

Law of Torts- I

Submitted by: Submitted to:

Vrinda Vinayak Mr. Prem Chand

Roll No. 76LLB14

2014

National Law University, Delhi

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Table of Contents

Serial No. Chapter Page

1 Declaration ii

2 Acknowledgements iii

3 Synopsis iv

4 Table of Cases viii

5 Chapter 1: Introduction 1

6 Chapter 2: Need to Limit Liability to Proximate Cause 3

7 Chapter 3: Tests of Proximate Cause 5

8 Chapter 4: Need for a Universal Test 12

8 Chapter 5: Conclusion 13

10 Bibliography 16

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Declaration

I hereby declare that the work reported in the B.A. LL.B (Hons.) Project Report entitled “The

Tests of Legal Cause in Tortious Acts” submitted at National Law University, Delhi is an

authentic record of my work carried out under the supervision of Mr. Prem Chand. I have not

submitted this work elsewhere for any other degree or diploma. I am fully responsible for the

contents of my Project Report.

Vrinda Vinayak

1st year

B.A. LL.B. (Hons.)

National Law University

Delhi

3rd November 2014

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Acknowledgments

I feel very privileged in expressing my gratitude to Mr Prem Chand and Dr Sushila for permitting

me to move forward with this research project and providing valuable inputs. This project could

not have been completed but for her able guidance.

I would like to thank Dr Priya Rai, Chief Librarian, National Law University Delhi, for enabling

me to utilize the library resources efficiently.

I also extend my gratitude towards my parents and my classmates who encouraged me and assisted

me directly or indirectly with my research.

Vrinda Vinayak

1st year

B.A. LL.B. (Hons.)

National Law University

Delhi

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Synopsis

1. Introduction:

In the law of torts, the phrase “legal cause” is defined as “the conduct that is a substantial factor in

bringing about harm, which is synonymous with proximate cause”. In other words, it is the term

that is used for the real cause of an accident or an injury. Legal cause can also be restated as

“causation”, which is the causal relationship between conduct and result. It provides a means of

connecting conduct with a resulting effect, typically an injury.

It has been mentioned above that “legal cause” is the same as proximate cause. In the law,

a proximate cause is “an event sufficiently related to a legally recognizable injury to be held to be

the cause of that injury”.

There are two types of causation in the law: factual cause, and proximate (or legal) cause. Cause-

in-fact is determined by the "but for" test: But for the action, the result would not have happened.

For example, but for Mr. A’s negligence, the collision which caused harm to Mr. B would not have

occurred. For a tortious act to cause a harm, both tests must be met; proximate cause is a legal

limitation on factual cause.

Where establishing causation is required to establish legal liability, it involves a two-step inquiry.

The first stage involves establishing ‘factual’ causation. Did the defendant actually act in

a way that caused loss to the plaintiff? This must be established before inquiring into legal

causation.

The second stage involves establishing ‘legal’ causation. This is often a question of public

policy: is this the sort of situation in which, despite the outcome of the factual enquiry, we

might nevertheless release the defendant from liability, or impose liability?

This research project aims to enquire into the second stage, i.e. the study of legal (proximate) cause

and present an analysis of the tests employed to determine legal cause in a tortious act.

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2. Literature Review:

The possible sources for this research paper are as follows:

2.1 Reference Books:

Law of Torts, by R.K. Bangia

The Law of Torts, 10th Edition, by Ramaswamy Iyer

Perspectives on Causation, Edited by Richard Goldberg

2.2 Articles/Journals:

Legal Cause in Actions of Tort, by Jeremiah Smith

Published by: The Harvard Law Review Association

Article DOI: 10.2307/1324390

Stable URL: http://www.jstor.org/stable/1324390

Legal Cause, by Henry W. Edgerton

University of Pennsylvania Law Review and American Law Register

Vol. 72, No.4 (May, 1924), pp. 343-375

Published by: University of Pennsylvania Law

Article Stable URL: http://www.jstor.org/stable/3314220

Legal Cause in the Law of Torts, by Robert E. Keeton

Published by: Harvard Law Review

Vol. 77, No. 3 (Jan., 1964), pp. 595-600

Article Stable URL: http://www.jstor.org/stable/1339048

Causation in Tort Law, by Richard W. Wright

73, CAL. L. REV. 1735 (1985)

Available at: http://scholarship.law.berkley.edu/californialawreview/vol73/iss6/2

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2.3 A Few Relevant Indian Cases:

Barnett v. Chelsea and Kensington Hospital Management Committee (1969): When three

night watchmen presented themselves to a nurse in the hospital complaining that they had

been vomiting and the casualty doctor on duty failed to examine them. One of them later

died of arsenic poisoning from the tea ha had taken earlier. Thus, the doctor not examining

him was not the proximate (legal) cause of his death, and the “but-for” factual test failed.

Thus, the hospital was not liable.2

Ganga Sugar Corporation Ltd & ors v. Sukhbir Singh: A jeep driver in the course of his

employment left the ignition keys in the jeep when he left it on a crowded road, and

someone drove the jeep in his absence and caused an accident. It was held that the

negligence of the driver, not the driving by the third person was the effective and proximate

cause of the accident.3

3. Statement of Research Problem:

“I wish to critically analyze the various tests employed by the court system to determine legal

cause, the case laws which helped establish these tests, and how they have evolved ever since.”

4. Objectives:

To enquire into the study of Test of Proximity.

To study why liability of the defendant is restricted to consequences brought about

by proximate causes only.

To present an analysis of the tests employed to determine legal cause in a tortious

act.

To see if there is a Test of Proximity that can be applied universally.

5. Hypothesis:

The hypothesis for this research project is as follows: “Factual cause, or cause-in-fact, has to be

determined before delving into legal or proximate cause. Usually, the courts employ the ‘but-for’

test to determine factual causation and the next step is to determine legal cause. But currently,

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there does not exist any one test or method to determine legal cause which can be applied to all

cases. These tests have to be tailored according to the facts of individual cases.

6. Research Questions:

a) How do the courts define the term “legal cause” as used in reference to actions of tort?

b) What are the reasons for limiting liability of the defendant to the proximate causes?

c) Which tests have been applied by courts till date and what are their advantages and

disadvantages?

d) What are the perspectives of scholars and jurists regarding these tests?

e) Is there any test for “legal cause” which can be applied universally without any

discrepancies?

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Table of Cases

S.No. Case Name and Citation

1 DeLong v. Miller & Lux (1907) 151 Cal. 227, 90 Pac. 925

2 Lawrence v. Southern Pacific Co. (1922) 189 Cal. 434, 208 Pac. 966.

3 Smith v. London & S. W. R. Co., 6 L. R. C. P. 14, 20 (1870)

4 Belding v. Johnson (1890) 86 Ga. 177, 12 S. E. 304.

5 Dudgeon v. Penbroke (1874) LRQB 581; 2AC284

6 Hogan v. Bentick West Hartley Collieries Ltd. (1949) 1 All ER 588

7 Robinson v. The Post Office (1974) 2 All ER 737

8 Wireland v. Cyril Lord Carpenters Ltd (1969) 3 All ER 1006

9 Barnett v. Chelsea and Kensington Hospital Management Committee(1969)1 QB 428

10 Ganga Sugar Corpn Ltd & ors v. Sukhbir Singh AIR 1974 All 113

11 Mahogany v. Ward (1889) 16 R. I. 479, 17 Atl. 860

12 Lynch v. Knight (1861) 9 H. L. Cas. 577

13 Sawdey v. R. W. Rasmussen Co. (1930) 107 Cal. App. 467, 290 Pac. 684.

14 Moon v. First National Bank of Benson (1926) 287 Pa. 398, 135 Atl. 114

15 Gilman v. Noyes, (1876) 57 N. H. 627, 631

16 Memphis & Birmingham R. R. Co. v. Lackey (1896) 114 Ala. 152, 21 So. 444.

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17 Polemis and Furness v. Withy & Co., [I92I] 3 K. B. 560 (C. A.).

18 Gilman v. Noyes, (1876) 57 N. H. 627, 631

19 Barnett v. Chelsea and Kensington Hospital Management Committee (1969) 1 QB

428

20 Ganga Sugar Corpn Ltd & ors v. Sukhbir Singh AIR 1974 All 113

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Chapter 1: Introduction

Tort liability is usually considered as having three components: a wrongful act or omission, a chain

of causation, a form of damage that the law will recognize. 1 In this trifurcation "wrongful conduct"

has conventionally meant the creation of unreasonable risk of injury to anyone;2 once this is found,

it has been felt that the actor should respond for all the results so long as they are proximately

connected with his conduct.3

The first question in causation is related to actual cause or cause in fact. The word "cause," where

cause in fact is implied, has a more inclusive meaning in law than it has in popular usage. In

common usage cause is confined to those antecedent events which are conceived of as creating or

producing the event in question. In law, however, it means any and all antecedents, active or

passive, creative or receptive, which were factors involved in the occurrence of the consequence.

For example, if A sells B a rope and B uses the rope to hang himself, A is regarded in the law as

the cause in fact of B's hanging; or if X drives his car down the street and it is struck and destroyed

by lightning, X's driving the car is a cause in fact of the car's destruction. 4

Cause in fact is essential to liability,5 but liability must be further delimited. The problem of

proximate cause is based on determining when a tort-feasor shall be exempt from liability for

consequences arising from his wrongful act. The requirement of proximate or legal cause merely

limits liability to those causes in fact which are of sufficient causative significance or of such

substantial nature as causes to warrant the law treating them as responsible causes.6

1 Smith, Legal Cause in Actions of Tort 25 HARV. L. REV. 103 (1911); Beale, the Proximate Consequences of an

Act 33 HARV. L. REV. 633, 637 (1920) 2 McLaughlin, Proximate Cause 39 HARV. L. REV. 150, 164 (1925). Smith v. London & S. W. R. Co., 6 L. R. C. P.

14, 20 (1870) 3 Torts. Negligence. Proximate Cause, Columbia Law Review, Vol. 33, No. 3, 546-547 (March, 1933) 4 Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259, 229 (March

1932) 5 DeLong v. Miller & Lux (1907) 151 Cal. 227, 90 Pac. 925; Lawrence v. Southern Pacific Co. (1922) 189 Cal. 434,

208 Pac. 966. 6 Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March

1932)

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‘Proximate’ is the word most commonly used by the courts to express the relationship of cause to

consequence. Its meaning in common, everyday usage of "near" has often led to misapplication of

this principle by the courts. For instance courts sometimes assume that there can be but one

proximate cause of a consequence or that if some cause is "more proximate" than the one for which

it is sought to hold the defendant, the defendant's cause is remote.7 This erroneous conception is

responsible for the wrong explanation frequently given for the non-liability of the defendant in

cases of contributory negligence on the part of the plaintiff.

The test of proximateness or proximity is of long standing and has the support of the maxim of

Bacon: ‘In jure non remota causa, sed proximia spectatur’, ‘It were infinite for the law to judge

the cause of the causes, and their impulsions one of another; therefore it contented itself with the

immediate cause and judegeth of acts by that without looking to any further degree.’8 It is true that

generally speaking, the conscious act of volition nearest in point of time to injury, is in law, the

responsible cause.9 But it is not always the sole deciding factor. A person who drives his car

negligently and causes a street accident may be liable to pay for the loss of limb of the injured man

though the proximate act which caused the loss of limb was the surgeon’s amputation. He may

even have to pay the surgeon if he made an honest mistake; but it would be otherwise if the surgeon

was guilty of malpractice.10

The principle is that the defendant must take the plaintiff as he found him. In the absence of any

novus actus interveniens, the defendant becomes liable for the consequences even though they

could not have been reasonably forseen or they could be as bad as they turned out to be.11 This

was a case where the plaintiff in the service of the defendant slipped and fell because of oil which

was negligently allowed to escape on to a ladder. The injury sustained by the plaintiff required

medical treatment as a result of which the plaintiff developed encephalitis. The defendants were

held liable for the same.12 It has been recognised that injury sustained in one accident may be the

cause of a subsequent injury. In one case,13 the plaintiff, a passenger in a bus, suffered an injury

7 Belding v. Johnson (1890) 86 Ga. 177, 12 S. E. 304. 8 WIGMORE, CASES ON TORTS, VOL. I, 870 9 Dudgeon v Penbroke (1874) LRQB 581; 2AC284 10 Hogan v. Bentick West Hartley Collieries Ltd. (1949) 1 All ER 588 11 RAMAMSWAMY IYER, THE LAW OF TORTS (2007) 12 Robinson v. The Post Office (1974) 2 All ER 737 13 Wireland v. Cyril Lord Carpenters Ltd (1969) 3 All ER 1006

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caused by the admitted negligence of the defendant. After going to the hospital, the plaintiff was

shaken and the movement of her neck was restricted by a collar which had been fitted. In

consequences, she was unable to use her bifocal spectacles with her usual skill and she fell while

descending stairs, and sustained further injuries. It was held that the initial damage and subsequent

injury were both attributable to the original negligence of the defendants, so as to attract

compensation from them.

The Test of Proximity is of no avail where there is a duty to anticipate and guard against the

intervention of other causes, for example, a bailee’s negligence resulting in loss due to the goods

being stolen by a thief.14 A jeep driver in the course of his employment left the ignition keys in the

jeep when he left the jeep on a crowded road, and someone drove the jeep in his absence and

caused an accident. It was held that the negligence of the driver was the effective proximate cause

of the accident.15

It is important to note that proximate causation is of three types or classes: (i) direct causation, (2)

causation by dependent intervening forces, and (3) causation by foreseeable independent

intervening forces, the risk of whose intervention was created or increased by the defendant.16

Chapter 2: Need to Limit Liability to Proximate Cause

Professor Joseph H. Beale suggests that it is to “expedite the work and reduce the burden of

courts trying cases…The consequences of an act may be innumerable; to trace them would

require infinite time and patience. Here, as in all affairs of life, it is necessary to reach a result

which will secure the greatest amount of consideration which is compatible with an equal

consideration to all other interests.”17

Our courts can give only its fair share of all the available time to trace the consequences of any

act, considering the other cases which are waiting for its attention. Charles E. Carpenter, in his

article Workable Rules for Determining Proximate Cause, provides the following example:

14 Barnett v. Chelsea and Kensington Hospital Management Committee (1969) 1 QB 428 15 Ganga Sugar Corpn Ltd & ors v. Sukhbir Singh AIR 1974 All 113 16 James Angell McLaughlin, Proximate Cause, 39 Harvard L.R., 149-199(December 1925) 17 Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March

1932)

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“If, for instance, the court is called on to investigate the dropping of some substance, the court will

watch it while it falls through the air; it will continue to watch it after it has fallen into an unstable

or dangerous position; but as soon as it has reached a safe and stable rest the court will turn away

to the investigation of some other act.”

But expedition of the trial of cases in courts of law cannot be the only explanation of the Doctrine

of Proximate Cause. Proof of cause in fact be dispensed very rarely on the grounds that it was

shown that it would be remote. In practically all cases, when the question of proximate cause arises,

the lawyer or the court has a definite consequence and a definite act or breach of duty of the

defendant in mind and the question for which an answer is sought is, is this wrong of the

defendant's a proximate cause of the consequence in question?18 In most instances, the question

whether there is a cause in fact relation between the defendant’s wrong and the harm suffered by

the plaintiff is easily discovered and usually answered before the question of proximate cause is

approached.

The securing of justice is sometimes urged as the basis of the requirement of proximate cause.

When a damage to the plaintiff occurs through the operation of several factors some of which are

more substantial than the one for which the defendant is responsible, it may appeal to most persons

as unjust, particularly if the defendant's factor is trivial, to permit the plaintiff to throw the whole

loss on the defendant. As there is no known method of properly apportioning the loss between the

plaintiff and defendant, either one of them have to bear the whole loss (except in cases of

contributory negligence) it will in many instances seem more satisfactory to leave the loss where

it originally falls i.e. have the defendant bear the entire loss, which may not be fair in all cases.

Carpenter stipulates that another reason for delimiting liability through this added requirement that

“the defendant's wrong must bear a relation of proximate cause to the consequence is a great

reduction of the burden thrown on courts of shifting losses from defendants to plaintiffs. This

burden will be more fully reduced if the rules of proximate cause can be made certain and definite.

Further, to permit the plaintiff to hold the defendant liable in every case where cause in fact exists

18 Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March

1932)

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no matter how insignificant a factor defendant's cause may have been will unduly hamper

legitimate activity.”19

The principle of proximate cause and the specific rules laid down to aid in the application of that

principle should not be confused with the reasons or the object for which it exists. Rules of law

must be definite and practical. Practically all rules of law have as the basis of their existence one

or more of the following reasons, namely, public policy, justice, fairness or expediency. But

legal scholars argue that these reasons are not in themselves rules and are not workable as such.

Many of the proposed tests of the proximate or legal cause are not rules of law but reasons for

rules. In the field of culpability so in the field of proximate cause or substantial factor more specific

and definite rules are needed to make the requirement practically applicable.

Chapter 3: Tests of Proximate Cause

A. ‘In jure non remota causa sed proxima spectatur’

Lord Bacon's maxim, "In jure non remota causa sed proxima spectatur," is the most frequently

quoted test, and is often found in legal literature. It literally means that the antecedent nearest in

space or time regarded as the proximate cause. This test can be very misleading; in many cases, an

act which is not nearest in space or time to the consequence in question has been taken as a

proximate cause. Smith comments on the efficacy of the test saying that, "the use of the maxim as

a universal solvent of difficulties has been productive of infinite confusion and error."20 The

meaning of Lord Bacon's maxim is ambiguous. If the maxim is taken to mean that in determining

liability for a loss, responsibility of the defendant for the final or nearest cause must be established,

it is not confusing. Once the final or immediate cause of the consequences for which it is sought

to hold the defendant responsible is ascertained then our whole attention may be directed to

answering the question of the responsibility of the defendant for that final cause.21

B. The Last Wrongdoer Rule

19 Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March

1932) 20 SELECTED ESSAYS ON THE LAW OF TORTS (1924) 652; Smith, Legal Cause in Actions of Tort (1911) 25 HARv. L. REv. 106. 21 Beale, Recovery for Consequence of an Act (1895) 9 HARv. L. REV. 80, 81.

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The last wrongdoer rule has recently been the subject of a lot of criticism22, but still finds

considerable following. It holds that the last wrongful human actor is to be the responsible cause

and all antecedent actors thereto should be exempted. The rule brings a correct result in many cases

where it holds the last wrongful human actor to be liable and it sometimes gives a sound result to

exclude earlier wrongful actors from responsibility, but in both situations there are too many

exceptions to make it a useful rule. For example, we may often exempt the last wrongdoer from

liability where an Act of God, an independent unforeseeable natural circumstance intervenes to

cause the injury immediately. A courier service company wrongfully delays the shipment of goods,

but on sending them forward after the wrongful delay, they are struck by lightning. In such a case,

the courts may relieve the courier company, the last wrongdoer, from liability for the destruction

of the goods. On the other hand, there are several cases where the defendant, who is not the last

wrongdoer, is held liable.23 Thus, where the defendant who negligently leaves property exposed

where he can reasonably foresee a thief will steal it should not escape liability for its loss and does

not by the decided weight of authority although he was not the last wrongdoer.24

C. ‘Causa sine qua non’- ‘But for’ Test

This is usually referred to as the "but for” rule. But for the defendant's act the consequence in

question would not have occurred. This test would often impose liability for acts very remote in

time or space and where the defendant's act was a most insignificant and incidental factor. It would

frequently require the imposition of liability in cases where it would be absurd to do so.25 To

illustrate: "Suppose D wounds P, which causes P to go to a hospital for treatment, which causes a

nurse, Q, to administer to P, which causes P to make love to Q, which causes Q's husband R, from

nervousness and irritation, to go on a reckless automobile ride in the course of which he runs over

P as P is leaving the hospital."26 This rule would require D to be held liable for the injury P received

in being run over.

22 Mahogany v. Ward (1889) 16 R. I. 479, 17 Atl. 860; Lynch v. Knight (1861) 9 H. L. Cas. 577; BORLEN,

STUDIES IN THE LAW OF TORTS (1868) 112, 335, 504, 507. 23 Sawdey v. R. W. Rasmussen Co. (1930) 107 Cal. App. 467, 290 Pac. 684. 24 Moon v. First National Bank of Benson (1926) 287 Pa. 398, 135 Atl. 114 25 Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March

1932) 26 Case taken from Edgerton, Legal Cause, 72 U. or PA. L. REV. 211, 224 (1924)

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The main objection to the “but for” rule is that it is more appropriate to establish ‘cause in fact’

rather than ‘legal cause’. The absurdity of the "but for rule" as a test of legal or proximate cause

was demonstrated by Justice Ladd in Gilman v. Noyes27, where the defendant had left down pasture

bars which made possible the escape of plaintiff's sheep and they had escaped and were killed by

bears. The trial court had instructed the jury, "that if the sheep . . . escaped in consequence of the

bars being left down and would not have been killed but for the act of the defendant, he was liable

for their value." Justice Ladd, in discussing this test, observed, "But it is equally certain, without

any finding of the jury, that they would not have been killed by bears if the bears had not been

there to do the deed; and how many antecedent facts the presence of the bears may involve, each

one of which bore a causative relation to the principal fact sufficiently intimate so that it may be

said the latter would not have occurred but for the occurrence of the former, no man can

say…Obviously the number of events in the history not only of those individual bears, but of their

progenitors clear back to the pair that, in instinctive obedience to the divine command, went in

unto Noah in the ark, of which it may be said, but for this the sheep would not have been killed, is

simply without limit. So the conduct of the sheep, both before and after their escape, opens a field

for speculation equally profound and equally fruitless…Such a sea of speculation has neither

shores nor bottom, and no such test can be adopted in drawing the uncertain line between

consequences that are actionable and those which are not."

While the "but for" rule may be applied negatively to exclude liability, it is frequently too broad

to apply affirmatively to impose liability.28 Thus, in Orton v. Pennsylvania Railroad Company,29

where the plaintiff sustained injuries when a negligently driven automobile in which he was a

passenger collided with the defendant's train negligently left blocking a highway at night and

without lights, the court held that the proximate cause of the injury was the carelessness of the

driver of the automobile whose lights would disclose substantial objects on the highway ahead for

a distance of two hundred feet, and that the defendant could not be held responsible as his act was

merely a condition and the driver's act superseded it as the responsible cause of the injury. It is

clear that "but for" the defendant's negligence the collision would not have occurred, but this is not

27Gilman v. Noyes, (1876) 57 N. H. 627, 631 28 Norris J. Burke, Rules of Legal Cause in Negligence Case, 15 California Law Review, 1-18 (November 1926) 29 (C. C. A. 6th Cir. July 3, 1925) 7 F. (2d) 36.

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sufficient to impose responsibility upon the defendant. The driver had independent, volitional

control of the situation and became the responsible cause of the accident.30

D. The ‘Probable Consequence’ Test

This test consists of two distinct dimensions, as demonstrated by Professor Smith31. One is that

the defendant is liable for probable consequences, and the other that he is free from liability for

improbable consequences. As to the first, it may be said that almost every legal writer agrees that

the defendant's wrong is the proximate or legal cause of all probable consequences. As to the

second, most writers have accepted it as demonstrated that the improbability of consequences must

be rejected entirely as a test of what is not proximate.32

Charles E. Carpenter in his article Workable Rules for Determining Proximate Cause,33 argues that

neither is the first proposition that all probable consequences are proximate universally true, nor

can improbability be entirely rejected as a test of remoteness. Courts generally hold that a probable

consequence is not proximate if it results immediately from an unforeseeable, intervening,

independent cause without which it would not have occurred, or, in many instances, even if it

results from a deliberate or voluntary dependent act of a human being. Also, the courts reach just

and desirable results in a greater portion of the cases in which they hold consequences not to be

proximate by applying the test of improbability.

As probability is an important aid though not a conclusive criterion in determining the existence

of proximity of causation, so improbability is likewise useful but not conclusive in determining

that proximity does not exist.34 It seems that in a considerable portion of the cases where causes

intervene after the defendant acted improbable consequences are not proximate.35

30 Orton v. Pennsylvania Railroad Company, (C. C. A. 6th Cir. July 3, 1925) 7 F. (2d) 36. 31 SELECTED ESSAYS ON THE LAW OF TORTS (1924) 652; Smith, Legal Cause in Actions of Tort (1911) 25

HARv. L. REv. 106. 32 James Angell McLaughlin, Proximate Cause, 39 Harvard L.R., 149-199 (December 1925) 33 Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March

1932) 34 Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March

1932) 35 SELECTED ESSAYS ON THE LAW OF TORTS (1924) 652; Smith, Legal Cause IN Actions OF Tort, 25 Harv.

L. Rev. 106 (1911)

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Three specific objections are raised, against the use of probability or foreseeability as a test of

proximate or legal cause, by Professor Smith. He objects first, that as the law stands, the defendant

is liable for probable consequences but he is not always free from liability for improbable

consequences; second, the test of probability should not be used to determine negligence and then

used again to determine legal cause; and third, "the causative effect of a defendant's tortious

conduct is not increased by the fact that a particular result was foreseeable." But these objections

have further been countered by other legal scholars.36

E. ‘Substantial Factor’ Test

Professor Smith proposes as a test of legal or proximate cause that "The defendant's tort must have

been a substantial factor in producing the damage complained of."37

This test has been criticized and is regarded to be practically useless as a workable rule to

determine legal cause in difficult cases, and the truth of its worthlessness is exemplified in Smith's

application of the test to the case where a carrier negligently delays goods in transit, and after the

goods are sent on they are destroyed by an act of God, as for example, by lightning. Smith reaches

the result that the carrier should be liable since it was a substantial factor in causing the result. This

is a decided minority view and against the recent marked trend of the decisions.38 The defendant

did not increase the chances of the intervention of such cause and without it the result would not

have happened. The result which the courts reach, therefore, seems clearly correct.

The truth seems to be this, that whether defendant's act is a substantial factor is not a test or a rule

of law which may be worked or applied by the courts but is merely the descriptive statement of

the essential nature of the relationship which must be found to exist between the defendant's wrong

and the consequence for which it is sought to hold him liable.39 It is a synonym for proximate cause

with helpful connotations. According to Carpenter, more specific rules of law must be laid down

to make it workable.

36 See Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March

1932) 37 Smith, Legal Cause in Actions of Tort, 25 HARv. L. REv. 106 (1911) 38 Smith, Legal Cause in Actions of Tort, 25 HARv. L. REv. 106 (1911) 39 Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March

1932)

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A second criticism has been made to substantial factor as a test on the ground that it assumes that

"nothing affects legal cause except the degree in which an act is a substantial factor in producing

a result; "40 that the real test of legal cause is justice rather than its materiality or substantiality as

a cause. However, Carpenter believes that Professor Smith is correct in confining legal or

proximate cause to a cause which is a substantial factor in producing the result. Proximate cause

is a delimitation of defendant's liability to those consequences for which the defendant's conduct

is materially responsible. There are several reasons for the rule and justice is one of them.41

F. Justly Attachable Cause Test

Justly attachable cause as the test of legal cause is the proposal of Professor Edgerton.42 The

advantages claimed for this over the substantial factor test is that it allows for qualitative as well

as quantitative considerations.

But Charles Carpenter objects to it, arguing that in reality it affords no test in a large portion of the

cases. In fact, it is not intended to be a definite guide because Professor Edgerton himself believes

that definite rules as to causation are not only impossible but undesirable.43

But justice is not in itself a good test for any rule, for in a large portion of the cases it is never clear

whether one or the other result is just and in such cases the test leaves us wholly at sea, whereas

rules may be perfected which will not work injustice, but will serve to make clear to persons their

legal rights, reduce litigation and expedite the trial of cases.44 When it is clear that the application

of a rule in particular instances works injustice that is persuasive ground for modifying the rule to

avoid such consequence, and where there is a separable group of such instances courts usually

develop a modification of the rule but do not do away with the rule entirely.45

G. Cause Distinguished from a Condition

40 Edgerton, Legal Cause, 72 U. oF PA. L. REV. 211, 343 (1924) 41 Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March

1932) 42 Edgerton, Legal Cause, 72 U. oF PA. L. REV. 211, 343 (1924) 43 Edgerton, Legal Cause, 72 U. oF PA. L. REV. 211, 343 (1924) 44 Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March

1932) 45 James Angell McLaughlin, Proximate Cause, 39 Harvard L.R., 149-199 (December 1925)

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It is sometimes assumed by courts that if the defendant merely facilitated the causing of the damage

by furnishing a condition, as opposed to directly causing the damage, he will not be held liable. It

has been shown that it is not possible to make a distinction between antecedents of a damage, as

to whether they are cause or condition that will aid in solving the problems of causation.46 The

objection to this test is that in many situations, it is an impossible task to make the classification

of antecedents into facilitating-conditions and causes.

H. Beale's System of Causation47

Professor Beale's system of proximate causation of active risk which would require for proximity

of causation that defendant's wrongful act, or failure to act, create or continue a force which

"remained active itself or created another force which remained active until it directly caused the

result; or have created a new active risk of being acted upon by the active force that caused the

result,"48 is an attempt to state a more definite and workable rule for measuring the substantial

character of the defendant's cause.

His article consists of several useful suggestions, but its mechanistic terminology is better fitted to

the study of sciences than to that of human relations, and when applied to the latter is often vague

and perplexing. Professor Edgerton has shown the ambiguity of the words "direct" and "indirect",

"active" and "passive", and that frequently either nothing turns upon this quality of the force or it

brings a wrong result.49

Professor McLaughlin has made a noteworthy effort to rehabilitate Beale's system50 and expressed

it 'in terms used by the courts. He has, however, in reality set up a system of his own. He says "We

have arrived at the conclusion that there are two types of proximate causation: (1) simple active

force causation; and (2) causation by independent active forces or through intervening voluntary

actions the probability of whose intervention was appreciably increased by the defendant's act."

According to several legal scholars, Professor McLaughlin has come up with the most workable

46 JAGGARD, HANDBOOK OF THE LAW OF TORTS (1895) 64; POLLOCK, TORTS (8TH ED. 1908) 464,

NOTE L. 47 Beale, Proximate Consequences, 33 HARV. L. REV. 633, 658 (1920) 48 Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March

1932) 49 Edgerton, Legal Cause, 72 U. OF PA. L. REV. 211, 343 (1924) 50 James Angell McLaughlin, Proximate Cause, 39 Harvard L.R., 149-199 (December 1925)

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and simplified system of causation yet. However, Carpenter critiques it51, saying that he greatly

overworks "probability" and would seem clearly out of accord with the cases in refusing to treat

stimulated voluntary action any differently than he does independent intervening forces, in other

words according to him only those voluntary actions which are appreciably probable produce

proximate consequences.

I. Extraordinary Result Test

One of the most recent tests laid down is the Extraordinary Result Test, which says: “Where a

result after the event appears extraordinary it is not a proximate consequence.” Carpenter

comments on it saying that the word ‘extraordinary’ is one which is not used in the law beyond

reference to acts of God and similar phenomena. If it constitutes any delimitation it is most

confusing and uncertain. Suppose we try to apply this test to a case. A, an engineer, negligently

drives his train toward a crossing over the defendant's track while the defendant's train is passing

over the crossing. Defendant's engineer after clearing the crossing suddenly backs his train and it

collides with A's engine. This does not appear to be an extra- ordinary result looking at it after the

event so that A's negligence would be treated as the proximate cause under this test but was the

court not correct in holding in that case that A's negligence was not a proximate cause of the

collision since there intervened an independent, unforeseeable act of a third person.52

Chapter 4: Need for a Definite Test

Professor Edgerton's thesis is that definite rules are impossible. But according to legal scholars,

definiteness itself is an indefinite, relative term. What degree of certainty is possible under the

principles proposed, and what is the use of striving for certainty?53 From analysis of the above

tests, it emerges that the legal system is in need of a common, universal test of legal cause for

tortious acts. But this issue is contentious as well, and conflicting viewpoints present themselves.

51 Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March

1932) 52 Kansas City, Memphis & Birmingham R. R. Co. v. Lackey (1896) 114 Ala. 152, 21 So. 444. 53 James Angell McLaughlin, Proximate Cause, 39 Harvard L.R., 149-199 (December 1925)

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On one hand, it is desirable to have the law even of proximate cause in some measure left to the

discretion of the bench and bar, so that we may have body of laws made by practical application

by professionals, and not altogether left to other men, unaided and untrained in this respect. The

problem with a universal test, according to legal scholars, is that several of these tests tend to

render judgement in favour of the plaintiff. That is why it is essential to maintain a certain degree

of discretion as well, wherein, if a court is convinced that extraordinary features, of time and space

for instance, require judgment for defendant in a given case, it can and will hold accordingly.

But on the other hand, it is also desirable that the result of cases be predictable as much as possible,

so that frivolous suits may not be brought, and well-founded claims may be settled outside of the

courtroom, and without wasting the court’s precious time. A settled practice and a set, universal

test of proximate cause in any jurisdiction must facilitate the operation of a legal instinct as

distinguished from a capricious one, and must add to the orderly and satisfactory settlement of

controversies in and out of court.54 A general plan of proximate cause should be regarded as a

working hypothesis; but if all courts approached cases according to a universal rule or test, the law

would have a degree of predictability and certainty that it does not currently have.

If the expressed policy of the court is that the result must be foreseeable, reasonable results can be

reached in certain cases by a loose interpretation as to the degree of definiteness in the

foreseeability required. This involves an elasticity in the conception of foreseeability which leaves

the legal system without any guide but its own conscience. Legal scholars admit that a degree of

flexibility in the application of the Doctrine of Proximity cannot be avoided.

Chapter 5: Conclusion

The first test discussed is Lord Bacon’s maxim ‘In jure non remota causa sed proxima

spectatur’ under which the act taking place nearest in time/space to the injury is taken as the cause.

But this test is ambiguous and misleading, and in some cases, the act closest in time is taken as the

legal cause, but it is not so. Such decisions hamper justice. The Last Wrongdoer rule, which says

that the last human wrongdoer is liable and all the antecedent actors should be exempted from

54 James Angell McLaughlin, Proximate Cause, 39 Harvard L.R., 149-199 (December 1925)

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liability, has also been criticised. Sometimes, the act of last human wrongdoer may not be the

proximate cause, and in other cases, the act of one of the earlier persons may be the one actually

causing damage. The third is the ‘but for’ test which would often impose liability for acts very

remote in time or space and where the defendant's act was a most insignificant and incidental

factor. It has been criticized on the grounds that it is more appropriate to determine cause in fact,

and while it is useful for exempting from liability, it is too broad to accurately fix liability.

The fourth test the researcher has studied is the ‘Probable Consequence’ Test which says that the

defendant is liable for probable consequences, and that he is free from liability for improbable

consequences. But the objections are that neither is the first proposition universally true, nor can

improbability be entirely rejected as a test of remoteness. Next is Professor Smith’s ‘Substantial

Factor’ test, which states that the defendant's tort must have been a substantial factor in producing

the damage complained of. But this test has been criticised as worthless, with no practical

applicability. It is merely a descriptive statement, explaining the relationship between the act of

the defendant and the damage caused to the plaintiff as a consequence thereof. Professor

Edgerton’s Justly Attachable Cause test is an improvement over the Substantial Factor test, as it

allows for both, qualitative and quantitative factors. Seventhly, ‘Cause Distinguished from a

Condition’ means that it is sometimes assumed by courts that if the defendant merely facilitated

the causing of the damage by furnishing a condition, as opposed to directly causing the damage,

he will not be held liable. But in many situations, it is impossible classify the acts into conditions

and causes. The Extraordinary Result test says that if the consequence of the defendant’s act

was extraordinary, then he is to be exempted from liability. But its criticism lies in the fact that the

word ‘extraordinary’ is used in the sense of Act of God in its legal meaning, and the term is

ambiguous.

Professor Beale's System of Proximate Causation of active risk which requires for proximity of

causation that defendant's wrongful act, or failure to act, create or continue a force which

"remained active itself or created another force which remained active until it directly caused the

result; or have created a new active risk of being acted upon by the active force that caused the

result,"55 is an attempt to state the most definite and workable rule for measuring the substantial

55 Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259, 245

(March 1932)

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character of the defendant's cause. Professor McLaughlin has further built on this test by

identifying two key types of proximate causations: simple active force causation; and causation by

independent active forces or through intervening voluntary actions the probability of whose

intervention was considerably increased by the defendant's act. According to several legal scholars

and professionals, it is the most viable candidate to be moulded into a universal test. In the

researcher’s opinion, this system of proximate causation eliminates most of the criticisms of all

the tests studied above. It is much more clear and workable, and does not leave too much to judicial

discretion; it has the potential to act as a steady guide.

It may be concluded what while values like justice are important guiding considerations which

play a fundamental role in all decisions of the courts, these values have not yet been shaped into

definite rules of law. Values are criticised because they leave several aspects of the law to judicial

discretion and lending the entire trial process a normative and subjective character. While there

are options that can be moulded into effective universal tests, none of them have materialised as

of now.

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Bibliography

Books:

1. R.K. Bangia, Law of Torts, 2011 Edition

2. Ramaswamy Iyer, The Law of Torts, 10th Edition (2007)

3. Richard Goldberg, Perspectives on Causation

4. Jaggard, Handbook Of The Law Of Torts, 1895

5. Pollock, Torts, 8th Edition, 1908

6. Selected Essays On The Law Of Torts, 1924

Articles:

1. Smith, Legal Cause in Actions of Tort (1911) 25 HARV. L. REV. 103

2. James Angell McLaughlin, Proximate Cause, 39 Harvard L.R., 149-199 (December 1925)

3. Torts. Negligence. Proximate Cause Source: Columbia Law Review, Vol. 33, No. 3 (Mar.,

1933), pp. 546-547 Published by: Columbia Law Review Association, Inc. Stable URL:

http://www.jstor.org/stable/1115729. Accessed on: 21/09/2014 22:11

4. Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California

L,R., pp. 229-259 (March 1932), Stable URL: http://www.jstor.org/stable/3475308 .

Accessed: 21/09/2014 22:20

5. Beale, Proximate Consequences, 33 Harv. L. Rev. 633, 658 (1920)

6. Edgerton, Legal Cause, 72 U. Of Pa. L. Rev. 211, 343 (1924)

7. Jeremiah Smith, Legal Cause in Actions of Tort, The Harvard Law Review Association,

Stable URL: http://www.jstor.org/stable/1324390

8. Henry W. Edgerton, Legal Cause, University of Pennsylvania Law Review and American

Law Register, Vol. 72, No.4 (May, 1924), pp. 343, Stable URL:

http://www.jstor.org/stable/3314220

9. Robert E. Keeton, Legal Cause in the Law of Torts, Harvard Law Review, Vol. 77, No. 3

(Jan., 1964), pp. 595-600, Stable URL: http://www.jstor.org/stable/1339048

10. Richard W. Wright, Causation in Tort Law, 73, CAL. L. REV. 1735 (1985), Available at:

http://scholarship.law.berkley.edu/californialawreview/vol73/iss6/2

11. Norris J. Burke, Rules of Legal Cause in Negligence Case, 15 California Law Review, 1-

18 (November 1926)