‘Factual causation’ and ‘scope of liability’: What's the difference?
| DOI | http://doi.org/10.1111/1468-2230.12063 |
| Author | David Hamer |
| Published date | 01 March 2014 |
| Date | 01 March 2014 |
THE
MODERN LAW REVIEW
Volume 77 March 2014 No 2
‘Factual causation’ and ‘scope of liability’:
What’s the difference?
David Hamer*
According to a dominant view, for the negligent defendant to be held liable for the plaintiff’s
harm the plaintiff must establish first, that the breach was the ‘factual cause’ of the harm, and
second, that the harm is within the ‘scope of liability’. On this view, factual causation is purely
factual, while scope of liability is normative and non-causal. This article accepts the basic two-step
approach, but argues that the distinction is overstated. A close analysis of the principles shows
that factual causation may require value judgment, and that scope of liability often involves an
assessment of the strength and nature of the causal connection between breach and harm.
INTRODUCTION
Consider this motor vehicle accident (MVA) scenario. Peter is hit by Dan’s car
while Peter is walking across the road at an intersection. According to Peter, he
was struck when Dan drove through a red light. Peter claims to have suffered a
broken leg in the accident, and to have subsequently suffered burns when the
ambulance that was rushing Peter to hospital was hit by lightning. In hospital
Peter goes into anaphylactic shock in an allergic reaction to antibiotics, suffering
permanent brain damage; the treating doctor had failed to check Peter’s records.
If Dan is found to have negligently driven through a red light, he is likely to be
held liable for the broken leg. But Dan will most likely avoid liability for the
burns and brain damage. Contemporary lawyers and commentators might con-
clude that while Dan’s negligence was a factual ‘but for’ cause of all injuries, the
burns and brain damage lie beyond the scope of Dan’s liability.
In recent years increasing support has been expressed for the proposition
that ‘factual causation’ (or ‘cause-in-fact’) and ‘scope of liability’ (or ‘proximate
causation’) are two distinct requirements for liability that operate in entirely
different ways. Factual causation is determined through a purely factual enquiry
whereas scope of liability is non-causal and involves a normative assessment. This
*Faculty of Law, Sydney University. I am grateful for the feedback received at Andy Roberts’ Evidence
and Procedure Workshop at Melbourne University where I presented some of this work in February
2013. I also thank Kit Barker, Mark Lunney and Barbara McDonald for their valuable comments on
an earlier draft of this article.
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(2) MLR 155–188
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
separation, described as a ‘great breakthrough . . . in analysis’,1has been attrib-
uted to legal realists, such as Leon Green.2Prominent contemporary proponents,
Jane Stapleton3and Richard Wright,4argue that the failure to maintain the
separation results in conceptual and legal confusion. The distinction between
factual causation and scope of liability has made its way into the American Law
Institute’s Third Restatement on Torts,5and Australian civil liability legislation.6
The separation between factual causation and scope of liability has gained
increasing support over recent decades but there have also been strong dissenters.
In their 1959 book and in more recent work H. L. A. Hart and Tony Honoré
set themselves against the realist suggestion that the scope of liability, or proxi-
mate causation as it is sometimes termed, is non-causal.7While they may agree
that Dan’s liability would not extend to the burns and brain damage, for them,
this would be in large part a factual and causal conclusion. More recently,
Michael Moore’s metaphysical theory of factual causation does a great deal of the
work in determining scope of liability, although also leaving some room for
normative principles.8And former Law Lord Leonard Hoffmann recently denied
that English judges make any use of the ‘two-step test’, and questioned whether
‘academic writers’ were in a position to impose this ‘philosophically privileged
form of causation’ upon them.9
This article provides a close examination of the distinction drawn by Stapleton
and Wright between ‘factual causation’ and ‘scope of liability’ and argues that
they have overstated its sharpness and significance. The second part unpacks the
causation tests favoured by the proponents of the distinction and shows that they
1 V. E. Schwartz, Comparative Negligence (Charlottesville, Va: Michie Co, 3rd ed, 1994) 89, quoted
in M. D. Green, ‘The Intersection of Factual Causation and Damages’ (2006) 55 DePaul Law
Review 671, 673.
2 eg L. Green, The Rationale of Proximate Cause (Kansas City, Mo: Vernon Law Book Company,
1927).
3 eg J. Stapleton, ‘Choosing what we mean by “Causation” in the Law’ (2008) 73 Missouri Law
Review 433, 455, 458.
4 eg, R. W. Wright, ‘The NESS account of natural causation: a response to criticisms’ in R.
Goldberg (ed), Perspectives on Causation (Oxford: Hart Publishing, 2011) 285, 305.
5 American Law Institute, Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010)
§26, §29.
6 eg Civil Liability Act 2002 (NSW), s 5D(1)(a) and (b). Similar legislation was passed throughout
Australia following a review led by David Ipp: Commonwealth of Australia, Review of the Law of
Negligence: Final Report (Canberra: Canprint Communications, 2002). Stapleton objects that the
separation in the Australian legislation is not strong enough. While ‘factual causation’ is clearly
distinguished from the normative ‘scope of liability’, both appear under the heading ‘Causation’:
J. Stapleton, ‘Reflections on Common Sense Causation in Australia’ in S. Degeling, J. Edelman
and J. Goudkamp (eds), Torts in Commercial Law (Pyrmont, NSW: Thomson, 2011) 331, 336.
7 H. L. A. Hart and T. Honoré, Causation in the Law (Oxford: Clarendon Press, 1st ed 1959, 2nd ed,
1985); T. Honoré, ‘Necessary and Sufficient Conditions in Tort Law’, in T. Honoré, Respon-
sibility and Fault (Oxford: Hart Publishing, 1999) 94; Stapleton, n 3 above, 459–460; R. Wright,
‘The Nightmare and the Noble Dream: Hart and Honoré on Causation and Responsibility’ in
M. H. Kramer, C. Grant, B. Colburn and A. Hatzistavrou (eds), The Legacy of HLA Hart: Legal,
Political and Moral Philosophy (Oxford: OUP, 2008) 165, 166.
8 M. Moore, ‘The Metaphysics of Causal Intervention’ (2000) 88 California Law Review 827;
M. Moore, Causation and Responsibility: An Essay in Law, Morals and Metaphysics (Oxford: OUP,
2009).
9 L. Hoffmann, ‘Causation’ in Goldberg (ed), n 4 above, 3, 5.
‘Factual causation’ and ‘scope of liability’
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
156 (2014) 77(2) MLR 155–188
do not turn purely on objective facts but entail value judgments. The third part
suggests that the claims about the normative non-causal nature of ‘scope of
liability’ are similarly overstated. Normative assessments clearly play a role in
truncating liability, however, the claim that this is a causation-free zone is largely
unsubstantiated.
To argue that the factual causation/scope of liability distinction is overstated
is not to say that it has no value. The distinction has contributed to conceptual
and legal understanding of causation and the limits of liability. However, it must
be acknowledged that models inevitably lack perfect verisimilitude.10 Our
commitment to a model should not overshadow our desire to understand the
phenomena, else the model may increase confusion rather than reducing it.
Models should be ‘treated as implements and ministers, not as monarchs’.11
THE FACT/VALUE DISTINCTION IN THE LEGAL CONTEXT
Before further exploring the nature of factual causation and scope of liability, I
provide a brief outline of the fact/value distinction. Without delving too deeply
into the vast philosophical literature dedicated to this question I offer a fairly
conventional account of the distinction reflecting its usage in legal commen-
taries. I will also note how the fact/value distinction relates to the fact/law
distinction.
Questions of fact are generally viewed as being concerned with an external
objective reality. In principle they have a correct yes/no answer, although
difficulties of proof may arise in practice. Questions of value, by contrast, are
concerned with what ought to be the case rather than what is the case. Answers
are not based purely on an objective reality but instead may reflect positions on
policy and morality.
Value judgments are sometimes viewed as being inherently subjective and
‘contestable’.12 While moral realists such as Ronald Dworkin consider that moral
statements are objective and do have truth value,13 they would still distinguish
moral statements from factual statements. Dworkin rejects the proposition that
there are ‘moral “facts” . . . “out there” in an “independent” realm’.14 On the
contrary, whereas a factual statement claims to have a causal connection with the
physical world and so may be tested by reference to the physical world, Dworkin
suggests that ‘morality and other evaluative domains make no causal claims [and]
such tests can play no role in any plausible test for them. We do need tests for
10 K. Popper, The Poverty of Historicism (London: Routledge 3rd ed, 1961) 77, 79.
11 E. Cahn, ‘Jerome Frank’s Fact-skepticism and our future’ (1957) 66 Yale Law Journal 824, 827.
moral statements ‘can be true without corresponding to any fact “out there”’: A. Srinivisan, ‘In the
Long Cool Hour’ (2012) 34 London Review of Books 17, 18, reviewing The Ethical Project,by
naturalist Philip Kitcher, and referring to New Realists Thomas Nagel, T. M. Scanlon, Ronald
Dworkin and Derek Parfit.
13 R. Dworkin, ‘Objectivity and Truth: You’d Better Believe It’ (1996) 25 Philosophy and Public
Affairs 87, 127–128.
14 ibid, 99.
David Hamer
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. 157(2014) 77(2) MLR 155–188
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