5, sec. Such a test asks a counterfactual question: ‘‘but for the defendant’s action, would the victim have been harmed in the way the criminal law prohibits?’’ This test is also sometimes called the necessary condition test, because it requires that the defendant’s action be necessary to the victim’s harm. 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. 363–399). One can, for example, only be liable for omitting to save another from drowning if none of one’s acts have the causal property, saving-the-other-fromdrowning (Moore, 1993, pp. The question is entirely one of fact. The onus is on the claimant to prove the link on the balance of probabilities. The basic test for causation is the ‘but for’ test. 345–347). Intuitively we know that this is absurd, yet to avoid this result we must deny that some cause c is ever sufficient (as well as necessary) for some effect e. And the problem is that almost all proponents of the necessary condition test readily admit that every cause c is, if not sufficient by itself, then sufficient when conjoined with certain other conditions c’; c”, etc. One who intentionally or recklessly causes a harm that another only tries to cause or risks causing, is more blameworthy (Moore, 1997, pp. R v Dalloway [1847] The prohibited consequences must have been caused by a culpable act. In any case, for one set of reasons or another, causation is an element of criminal liability for all completed crimes, in addition to mens rea and voluntariness of action. When a crewman falls overboard and drowns, was a necessary condition of his death the act of the defendant in destroying the life preserver? It leaves open a full range of causal questions, much more than do injunctions of criminal law such as, ‘‘do not intentionally hit another.’’. Causation, the ‘but-for’ test and flexibility, Dudley Lee v Minister of Correctional Services, Mashongwa v Passenger Rail Agency of South Africa, FSCA takes first steps in the regulation of crypto assets, COVID-19 is not insured ‘pollution’ (USA), The difference between ‘significant’ and ‘substantial’, A forfeiture clause providing for summary cancellation of lease agreement on breach is not unfair under the CPA. 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. Feel free to contact our writing service for professional assistance. To make the counterfactual test determinate enough to yield one answer rather than another, we have to assume that we share an ability to specify a possible world that is ‘‘most similar’’ to our actual world, and that it is in this possible world that we ask our counterfactual question (Lewis, 1970). The conventional wisdom about the causation requirement in both criminal law and torts is that it in reality consists of two very different requirements. 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. Proponents of this test urge that legal cause, properly understood, is really a mens rea doctrine, not a doctrine of causation at all. Although this view has been elevated to a dogma accepted by both American and English criminal law theorists (Fletcher, 1978, pp. A second way in which the counterfactual test is overinclusive is with regard to coincidences. As to the problem of indeterminacy, they assert that we test counterfactuals in that possible world that is relatively close to our actual world; usually this means removing the defendant’s action only, and then suspending enough causal laws so that events that normally cause such action just did not on this occasion (Wright, 1988). There are often two reasons cited for its weakness. Yet the counterfactual analysis suggests just the opposite. First, begin with some version of the counterfactual analysis: a cause is a necessary condition for its effect (or perhaps a NESS condition). The question of causation can be divided into two issues: causation in fact and causation in law (also known as remoteness). Dec.49 (1866)). 3). How do you determine actual causation?First of all, you have to ask what actual causation is: “ The long accepted test of factual causation is the ‘but-for’ test. For crimes of strict liability, where no mens rea is required, the test requires that the harm that happened be one of the types of harms the risk of which motivated the legislature to criminalize the behavior. In the English law of negligence, causation proves a direct link between the defendant’s negligence and the claimant’s loss and damage. When two fires join, two bullets strike simultaneously, two motorcycles scare the same horse, each is a cause of the harm because each is doing its physical work. Yet we know (on the counterfactual analysis) that my jogging in the morning was necessary to my dog getting tired. It is a significant objection to the counterfactual theory that it blurs this crucial distinction. There is no pretense in such rules of making truly causal discriminations; rather, such rules were adopted for explicit reasons of legal policy. Unlike the thousands of specific actions prohibited or required by the criminal law, tort law largely consists of but one injunction: do not unreasonably act so as to cause harm to another. Analogously, the ‘‘last wrongdoer rule’’ held that when a single victim is mortally wounded by two or more assailants, acting not in concert and acting seriatim over time, only the last wrongdoer could be said to be the legal cause of the death (Smith, p. 111). The third sort of test here is the well-known foreseeability test (Moore, 1997, pp. With regard to the problem posed by the overdetermination cases, the best known alternative is to propose the NESS test: an event c causes an event e if and only if c is a necessary element in a set of conditions sufficient for e (Mackie; Wright, 1985). 60–62; Buxton, p. 18; Williams, p. 368), it is manifestly false. Whether the harm that happened is an instance of the type of harm intended is what the present author calls the ‘‘fit problem.’’ Fact finders have to fit the mental state the defendant had to the actual result he achieved and ask whether it is close enough for him to be punished for a crime of intent like mayhem. We do need to know, counterfactually, if the defendant had not omitted to do some action, whether that action would have prevented the harm in question. Legal causation. Get discount 10% for the first order. Unlike the ‘‘rules-based’’ test, here there is no multiplicity of rules for specific situations (like homicide, intervening wrongdoers, railroad fires, etc.). The real question for the harm-within-the-risk test is whether this grading by culpable mental states is all that is or should be going on under the rubric of ‘‘legal cause.’’. It entails the hypothetical “thinking away” of a particular alleged cause of a result and asking whether, absent that cause, the offending result would nonetheless have occurred. For a plaintiff to succeed in a negligence case, the defendant must have owed a duty of care to the plaintiff. One asks whether the claimant’s harm would have occurred in any event without, (that is but-for) the defendant’s conduct. This conclusion is contrary to common intuition as well as legal authority (People v. Lewis, 124 Cal. In either case causation is central to criminal liability. ‘‘Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts.’’. Firstly, ‘factual causation’ must be established and then followed by ‘legal causation’. 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. Just about everybody rejects this conclusion, and so such cases pose a real problem for the counterfactual analysis. 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. Thrown it in time? 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. The main problem for the harm-within-therisk test itself does not lie in any of the directions we have just explored. One asks whether the claimant’s harm would have occurred in any event without, (that is but-for) the defendant’s conduct. 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 … 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. 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). Situation crimes. If the foreseeability test is to be restricted to this nonredundant work it is better abandoned for the harm-withinthe-risk test. Such salient events, in other words, are breakers of causal chains as much as they are initiators of causal chains, so that if they do intervene they relegate all earlier such events to the status of mere background conditions. Introduction Preliminary points Hastening Death Common Purpose Two stage enquiry Factual Causation Too wide Legal Causation Individualisation Tests Foreseeability Tests … Caesar’s crossing the Rubicon may well be a necessary condition for my writing this article, but so many other events have also contributed that Caesar’s causal responsibility has long since petered out. They have also needed to determine the meaning of ‘loss’. 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). 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). One set of these problems has to do with proof and evidence. Criminal law thus has been a borrower from torts on the issue of causation. Therefore, by the transitivity of ‘‘necessary,’’ my feet getting tired was necessary to my dog getting tired. (Mill, 1965, book 3, chap. This problem does not infect the foreseeability and harm-within-the-risk tests. 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. Yet this is hard to square with the harm-within-the-risk test. After all, did not the defendant foresee just the type of harm an instance of which did occur? The temptation to accept the dogma (of noncausal criminal actions) stems from the fact that many of the results the criminal law prohibits are usually brought about rather directly. When we say, ‘‘but for the defendant’s act of destroying the life preserver,’’ what world are we imagining? Situated rather nicely between these two sorts of overdetermination cases is what this author has called the asymmetrical overdetermination cases (Moore, 1999). It adopted an approach to causation premised on the flexibility that has always been recognised in the traditional approach. The main problem with both the ad hoc and the rule-based policy tests is that they seek to maximize the wrong policies. Their novelty lies in their reallocation of the locus of blame. All this indicates that the common law but-for test for causation is an over-blunt and inadequate tool for securing constitutionally tailored justice in cases where prisoners have proved exposure to disease because of negligence on the part of the prison authorities, but cannot pinpoint the source of their injury. There is an ambiguity about causation that we have hitherto ignored but which does find intuitive expression in the decided cases. There is a great vagueness in counterfactual judgments. 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 is hard to square with the harm-within-the-risk test. For those tests do seek to describe a factual state of affairs that plausibly determines moral blameworthiness. Causation in criminal liability is divided into factual causation and legal causation. 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… Promo code: cd1a428655, Capital Punishment in Criminal Law Research Paper, Procedural Protection in Sentencing Research Paper, Criminal Law and Enforcement in China Research Paper, Criminal Law and Enforcement in England Research Paper, Criminal Law and Enforcement in Islam Research Paper, Criminal Law in Preliterate Societies Research Paper, Criminal Law and Enforcement in Russia Research Paper, Confessions in Criminal Law Research Paper, Conviction and Civil Disabilities Research Paper, Corporate Criminal Responsibility Research Paper, Criminalization and Decriminalization Research Paper, Criminal Law Reform in Europe Research Paper, Criminal Law Reform in England Research Paper, History of Criminal Law Reform Research Paper, Current Issues in Criminal Law Reform Research Paper, Legal Aspects of Employee Theft Research Paper, Eyewitness Identification in Criminal Law Research Paper, Federal Criminal Jurisdiction Research Paper, Federal Criminal Law Enforcement Research Paper, International Criminal Courts Research Paper, International Criminal Law Research Paper, Justification of Law Enforcement Research Paper, Psychopathy in Criminal Law Research Paper, Sex Offender Commitment Laws Research Paper, BEALE, JOSEPH. Free, informed, voluntary human actions, and those abnormal conjunctions of natural events we colloquially refer to as ‘‘coincidences,’’ are the two kind of necessary conditions we find salient and honor as ‘‘causes’’ (versus mere ‘‘background conditions’’). The fourth and last sort of test here is the ‘‘harm-within-the-risk’’ test (Green). As it happens, the fuse goes out. 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. 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. To grade culpability by the mental states of intention, foresight, and risk we have to solve the fit problem above described. Such problems cause grave doubt to exist about any version of the counterfactual test among many legal theoreticians. 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? For crimes requiring knowledge or general intention for their mens rea, the test asks whether the harm that happened was an instance of the type of harm foreseen by the defendant as he acted. The first are the concurrentcause cases: two fires, two shotgun blasts, two noisy motorcycles, each are sufficient to burn, kill, or scare some victim. Special offer! Blog posts are not legal advice. Consider in this regard two well-known sorts of legal cause cases. But this is not always the case, as where the defendant inserts the penis of another into the victim (Dusenberry v. Commonwealth, 220 Va. 770, 263 S.E2d 392(1980)); and in any case, that the causal conclusion is often easy to reach should not obscure the fact that a causal judgment is involved in all actions prohibited or required by the criminal law. law of delict. This is basically a juridical problem in the solution of which considerations of policy may play a part. The Courts have defined the test for causation, which is split into factual and legal causation. It is also sometimes said that many prohibitions of the criminal law do not involve causation. Such borrowing has not been uniform or without reservations. When one nonmortal wound is inflicted together with a larger, mortal wound, the victim dying of loss of blood, each is a cause of death because each did some of the physical work (loss of blood) leading to death. Suppose the defendant sets explosives next to a prison wall intending to blow up the wall and to get certain inmates out. The general ‘‘functionalist’’ approach of such tests to legal concepts is correct: we should always ask after the purpose of the rule or institution in which the concept figures in order to ascertain its legal meaning. Yet notice that to assess whether a defendant is liable for an omission to prevent some harm, a causal judgment is still necessary: we have to know that no act of the defendant prevented (i.e., caused the absence of) any such harm. Yet the same can be said about the second fire, shot, or noise. The criticism is that the test is thus overinclusive. Suppose a defendant culpably delays his train at t1; much, much later and much further down the track at t2, the train is hit by a flood, resulting in damage and loss of life (Denny v. N.Y. Central R.R., 13 Gray (Mass.) This approach thus picks an appropriately vague line below which one’s causal contribution to a given harm will be ignored for purposes of assessing responsibility. 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. Such stipulations are embarrassingly ad hoc, but they do eliminate otherwise troublesome counterexamples. Here the two putative causes are not simultaneous but are temporally ordered. Such an injunction places greater weight on causation. Regard being had to all the facts, the question is whether harm would nevertheless have ensued, even if the omission had not occurred. Courts then decide wherever such balance leads. Browse criminal justice research paper topics for more inspiration. It is also relevant for English criminal law and English contract law. Typically, this restriction is married to some counterfactual conception of causation (Wright, 1985). Oxygen in the air over England, timber in Scotland, Henry the VIII’s obesity, and Drake’s perspicacity were all probably necessary for the defeat of the Spanish Armada (Moore, 1993, pp. 471–530). Factual causation: the 'but for' test There must be a factual determination as to whether the defendant's actions caused the claimant's harm. It is the stress on sufficiency that is supposed to end run the overdetermination problems. The first case summaries involve questions of factual causation, which usually requires an application of the ‘but-for’ test. Yet, with such inevitability of effects from their causes come a necessity of those effects for those causes. The fourth set of problems for the counterfactual test has to do with the test’s underinclusiveness. The overinclusiveness of the test can be seen in at least four distinct areas. Whatever decision is reached on such case-by-case policy balancing is then cast in terms of ‘‘proximate’’ or ‘‘legal’’ cause. Similarly, if the charge is manslaughter (for which consciousness of the risk is required in some jurisdictions), this test requires that the death of the victim be within the risk the awareness of which made the defendant’s action reckless. The resulting conception of causation promises fully as discriminating a notion as was achieved by the harm-within-the-risk approach of the conventional analysis (for notice that this conception really is just harm-within-the-risk conceptualized as a true causal doctrine rather than a construction of legal policy). There must be both factual and legal causation. Legal and factual causation relates to whether or not the the defendant's act or omission i.e. This has two effects: at t2, my feet get tired; at t3, my dog gets tired. Our courts now adopt a two-phase enquiry into causation: firstly into factual causation, by means of the conditio sine qua non test, and secondly into legal causation, based on policy considerations of reasonableness, fairness, and justice, as informed, however, by various specific tests of legal causation. The defendant’s fire arrives first and burns down the victim’s building; the second fire arrives shortly thereafter, and would have been sufficient to have burned down the building, only there was no building to burn down. The scope of the defendant’s duty 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. 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. Why is the defendant who intends to kill another and does all he can to succeed in his plan less punishable when he fails to cause the harm intended than when he succeeds? The test for factual causation is the sine qua non ( or “but for” ) test. An actor is liable for the foreseeable, but not the unforeseeable, consequences of his or her act. There is no equivalently dominant test of legal or proximate cause. We know we are to eliminate the defendant’s act, but what are we to replace it with? My jogging in the morning was not only necessary for my feet getting tired, it (sometimes at least) was also sufficient. Establishing Factual Causation. If it would, that conduct is not the cause of the harm. Our lawyers offer local insights with an international perspective recognised worldwide. 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. Thus, the common law rule for homicide was that death must occur within a year and a day of the defendant’s harmful action, else the defendant could not be said to have legally caused the death. For establishing the doctrine of causation, one must investigate into ‘factual causation’ and ‘legal causation’, thereby convicting anyone of legal liability. 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. If the consequences are not caused by the defendant’s culpable act, then legal causation is not made out. The test is in the service of the right policy in its seeking of a true desertdeterminer, and the test does not ask a redundant question. 213–225). Norton Rose Fulbright LLP © 2020. 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. Penetration in rape, for example, usually is not the result of a lengthy chain of events beginning with the rapist’s voluntary act. This Practice Note considers the legal element of the causation test. Hart and Honore built on considerable case law support for their two candidates for intervening causes (Carpenter, pp. However, this test is subject to limits and exceptions which are considered in this Practice Note. 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