A STEP FORWARD IN FACTUAL CAUSATION
| Author | Ernest J. WeinribB.A |
| Published date | 01 September 1975 |
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01428.x |
| Date | 01 September 1975 |
A
STEP
FORWARD
IN
FACTUAL CAUSATION
INTRODUCTION
TORT
lawyers traditionally distinguish between two meanings of
the word
“
cause.” Under the rubric of cause in fact, the focus is a
historical one, and attention is directed to the simple question of
what happened, of whether the defendant’s conduct produced the
injury. The second rubric, that of proximate cause
or
remoteness,
deals with what
is
usually a much more complex question: assuming
that the defendant’s conduct did result in the injury, what legal
consequences should the law attach to the defendant’s conduct? The
first meaning of the cause is considered to require
a
factual inquiry
which is resolved by the production of evidence and the drawing of
inferences from that evidence. The second connotation involves not
history but value and policy, determined, as are all questions of
judicial policy, by the leeways for creativity allowed by the common
law tradition.’
For
the plaintiff to succeed the court must be satisfied
that the defendant’s conduct was
a
cause, in both senses of the
word, of the injury.
The reason for insisting upon a cause in fact relationship between
conduct and injury is obvious, indeed
so
obvious that it rarely
receives elucidation. The law of negligence involves
at
the remedial
stage a two-fold process. Not merely is the plaintiff compensated,
but this compensation is extracted from
a
particular defendant. And
the particular defendant is not singled out because of some general
moral deficiency, but because of his connection with the injury
that has been inflicted. The law of negligence, in embodying the
principle of individual responsibility for the consequences of one’s
acts, imposes no responsibility for acts, however abominable, that
do not result in consequences injurious to the complainant. Insis-
tence by the courts on the cause in fact requirement prevents the
litigation from being transformed into a general comparative survey
of the moral qualities and defects of the litigants.
Cause in fact, then, is a device for limiting a negligence action to
what is relevant in view of the consequence for which the plaintiff
is seeking redress.
If
the defendant has not in fact caused the injury,
he is absolved. In this sense the cause in fact inquiry can be deter-
minative of lack of liability. It cannot, however, serve the converse
function. The finding that the defendant did in fact cause the injury
does not automatically mean that he is liable since the court still
must assess whether the factual causation should have legal con-
sequences, Since cause in fact can determine innocence but not
liability, it functions as a test of exclusion, allowing a court to weed
518
1
Karl
Llewellyn,
The
Common
Low
Tradition:
Deciding
Appeuls-(1960)
219.
Sept.
19751
A
STEP FORWARD
IN
FACTUAL CAUSATlON
519
out defendants without having
to
decide whether their conduct was
legally culpable.2
Because of its primarily historical orientation, the cause in fact
issue rarely raises troublesome problems of prin~iple.~ On a generous
estimate the catalogue
of
interesting cases in this area in the last
generation
or
so
would perhaps contain three entries.“ Accordingly
the House of Lords decision in
McGhee
v.
National Coal Board
should rank as a notable event. Here the pursuer, who had contracted
dermatitis after working in the hot and dusty ambience
of
the
defender’s brickworks, alleged that the defender had materially
increased the risk by not installing showering facilities. The defender
conceded that it had breached the duty of care that it owed to the
pursuer, but contended that in view of the inadequate medical
knowledge about the causes of dermatitis, the pursuer had not
proved
on
a balance of probabilities that he would not have con-
tracted the disease even
if
the washing facilities were present. The
court found for the pursuer, invoking
“
the practical way in which
the ordinary man’s mind works in the every-day affairs of life,”
though one of the judges was prepared to concede that the case
“
would be a fruitful source
of
interesting academic discussions
between students of philosophy.”
’
The case suggests three questions of the greatest practical and
theoretical significance. What is the relationship between this dis-
position and the handling of other cause in fact situations? What is
the effect on the burden of proof of factual cause? And, most
abstractly, what is the role
of
policy considerations in the cause in
fact inquiry?
(i)
The
Disposition
of
Fact Patterns
Traditionally two different methods of analysis have been
employed in the solution of the cause in fact issue, depending on
2
Fowler
V.
Harper and Fleming James,
Jr.,
The Law
of
Torrs
(1956)
1110;
R.
W.
M.
Dias,
Clerk and Lindsell on Torrs
(13th
ed.
1969)
para.
307;
John G.
Fleming,
An
rntroduction
to
the
Low
o/
Torts
(1967) 109
(referring to cause in fact
as
“
the first screening of all claims
”1.
’
3
Cf.
the observations
of
the late Dean C. A. Wright,
“
The Law of Torts:
1923-
1947
”
(1948) 26
Can.Bar Rev.
46,
58:
‘‘
Cause and effect are pure questions
of
fact.
Did the defendant’s conduct cause the injury
of
which the plaintiff is complaining?
In not one case in a thousand
is
there any question that it did.”
4
Cook
v.
Lewis
[19521
1
D.L.R.
1
(S.C.C.)
and its American cognates;
Curler
v.
Vauxhall Motors
[I9701 2
All
E.R.
56
(C.A.);
Baker
v.
Willoughby
[1970] 2
W.L.R.
50
(H.L.).
For
comment on the prohlems raised by these cases, see Brian T.
Hogan,
“
Cook
v.
Lewis
Re-examined
”
(1961) 24
M.L.R.
331,
and the articles
published together under the title
“
Variations on an Enigma
”
by Harvey McGregor,
I‘
Successive Causes
of
Personal Injury
”
(1970)
33
M.L.R.
378
and
D.
M.
A.
Strachan,
‘‘
The Scope and Application
of
the
‘
But For
’
Causal Test
”
(1970)
33
M.L.R.
386.
More prolific than the Judicial discussion has been the academic one,
stimulated by the monographs
of
Becht and Miller,
The
Test
of
Factual
Causation in
Negligence nnd Strict Linbiliry Cases
(1961).
Hart and Honor&,
Caitsafion
in
the Low
(1959).
and Harari,
The Place
o/
Negligence
in
the Law
of
Torts
(1962).
[
19721
3
All E.R.
I008
(H.L.).
Per
Lord Reid,
ibid.
at
p.
1011.
Per
Lord Salmon,
ibid.
at
p.
1018.
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