Factual Causation
| DOI | 10.22145/flr.38.3.9 |
| Author | Jane Stapleton |
| Published date | 01 September 2010 |
| Date | 01 September 2010 |
| Subject Matter | Article |
FACTUAL CAUSATION
Jane Stapleton*
The doctrinal parameters of the tort of negligence are remarkably open-textured which
is why it has typically been in negligence cases that foundational formulations of
factual causation have been made. This area of law has recently undergone an
extensive restatement by the American Law Institute ('ALI') and been the subject of
legislative attention in all Australian states. In the light of these developments this
essay sketches some essenti al issues relevant to factual causation which apply not only
to the tort of negligence but throughout the law.
I THE RESTATEMENT OF US TORT LAW
At the end of the 20 th century the ALI launched a project to compile a Third
Restatement of the general principles of the US law of torts. Previous restatements had
covered a field described as 'legal ca usation' so the question arose as to how to restate
this field. The orthodox starting point for common law analysis is to read the cases and
deduce there from the meaning courts ascribe to relevant terms such as 'duty' or
'breach'. This most basic of analytical techniques fa ils utterly in the area of causal
terms. In the First and Second Restatement of Torts the term 'legal cause' signified an
amalgam c oncept co nsisting of b oth an historical con nection element (d id the brea ch
contribute to the injury?) and a truncation of lega l responsibility element (should the
party in breach be liable for this injurious consequence of the breach?). Yet in some
case law 'legal cause' signified only the truncation of legal responsibil ity element.
Exactly the same terminological disarray was present in relation to the term 'proximate
cause': in some contexts it signified t he amalgam of the two elements; in others, the
most common usage, it referred only to the truncation issue. So it was that US case law
contained both: statements that proximate cause was the second component of legal
cause;1 and statements that legal cause was the second component of proximate cau se.2
Compounding this confusion was the indiscriminate deployment by US courts of
the ter m 'substantial factor'3 (akin to the shifting use of 'material contribution' in the
Commonwealth).4 Sometimes 'su bstantial factor' was used in relation to the
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* Professor, Australian National University.
1 See, eg, Winn v Posades, 913 A 2d 407, 411 (Conn, 2007).
2 See, eg, Harrison v Binnion, 214 P 3d 631, 638 (Idaho, 2009).
3 See, eg, Dan Dobbs, The Law of Torts (2000) 416: 'the substantial factor test is not so much a
test as an incantation'.
4 See Jane Stapleton, 'Cause-in-Fact and the Scope of Liability for Conse quences' (2003) 119
Law Quarterly Review 388, 394–5 (hereafter 'Cause-in-Fact').
468 Federal Law Review Volume 38
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requirement that the legal complaint relate to an injury that is more than trivial.
Elsewhere it was used: as a synonym for the 'but-for' test; or as a fudge to mask the
inadequacy of the but-for test of historica l connection in cases such as where there are
two or more sufficien t factors;5 or to mask radical rules developed to permit a plaintiff
to jump an otherwise unbridgeable evidentiary gap.6
There was no value in the Institute attempting to 'restate' this causal usage. Clari ty
of exposition required that causal terminology be confined to a single idea, namely the
objective idea of historical connection, conveniently captured by the term 'factual
causation'. It was cruc ial that this question of fact (and the special rules of la w relating
to its proof) be recognised as completely distinct from the issue of where and why
responsibility for the infinite chain of consequences of conduct should be truncated.
This truncation issue, sometimes known outside the US as 'remoteness', rests entirely
on the normative analysis of the facts. Accordingly it was recommended to the ALI:7
that each of these two issues be given its own separate chapter in the new Restatement;
that terms such as 'legal cause', 'proximate cause' and 'substantial factor' should be
completely abando ned; and that henceforth, the truncation issue should be described
in the completely non-causal terms of 'the scope of liability for the consequences of
breach', or 'scope of liability' for short.
It was a reflection of the deep dissatisfaction wi th the state of US doctrine in the
area, and in particular with the description of the truncation issue in causal terms, that
all these suggestions were smoothly adopted by the ALI, despite their radical nature
both in terms of their departure from the terminology of case law and in terms of the
structure of preceding restatements of torts. Accordingly in volu me 1 of the Restatement
Third, Torts: Liability for Ph ysical and Emotional Harm (2009) Chapter 5 deals with the
issue of 'Factual Cause' while a completely separate chapter, Chapter 6 , deals with the
distinct truncation issue of 'Scope of Liability'.
II THE COMMONWEALTH
What then about the state of case law on these issues in the Commonwealth?
Remarkably, here there has been even more disarray for, whereas US courts had long
accepted that there were two separate issues at stake, the historical connection issue
and the truncation issue, Commonwealth courts have struggled to express this
separation in a consistent and coherent manner. One major source of difficulty in
Australian courts has been the frequent and lamentable recourse t o the slogan of
'common sense' causation.8
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5 See, eg, Anderson v Minneapolis, St Paul & Sault Ste Marie Railway Co, 146 Minn 430 (Minn,
1920) a case involving the merging of two fires where the term was first coined by a US
court.
6 See Jane Stapleton, 'The Two Explosive Proof-of-Causation Doctrines Central to Asbestos
Claims' (2009) 74 Brooklyn Law Review 1011 (hereafter 'The Two Explosive Proof-of-
Causation Doctrines').
7 See Jane Stapleton, 'Legal Cause: Cause-in-Fact and the Scope of Liability for
Consequences' (2001) 54 Vanderbilt Law Review 941.
8 A typical example is Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR
568, 581 [41] (McHugh J). Appeal to the idea of 'common se nse' causation is extremely rare
in the US and is widely deprecated in the UK, see, eg, Stone & Rolls Ltd (in liq) v Moore
Stephens (a firm) [2009] 3 WLR 455, 460 [5] (Lord Phillips of Worth Matravers).
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