The one we have already seen in the fourth variant of the counterfactual cause test. If one does not ask whether the defendants` action was necessary for the harm to occur — rather, in a more nuanced way, whether the aspect of their action that made them negligent or otherwise culpable caused the harm — then one has a causal test that is almost as discriminatory as the simple counterfactual test combined with a version of the harm at risk of the immediate cause test (Keeton, 1963; Wright, 1985b). This is not surprising, since both criteria declare inadmissible all aspects of the accused`s actions that do not render them guilty. With respect to causation, aspects of the defendant`s act that are not relevant to guilt are not (pertinently) the cause of the damage; For the purposes of the risk injury test, these irrelevant aspects of the defendant`s actions do not correspond to the guilty mental state of the accused. Whether you think of it as causation (the aspect-cause-cause view) or culpability (the point of view of harm in risk), the discriminating power is about the same. 12. The intention assumed aphrodisiac powers to extend legally relevant causal influences to otherwise legally distant events (the common law maxim “no harm is too far removed if anticipated”; Terry, 1914:17). These are the conclusions of the legal skeptics examined here. Such skeptics seem to deny that causality exists like any kind of natural relationship, whether it is a “glue-like” natural relationship, a regular agreement in nature, or something else. Since it is historically easier to approach such skepticism, I will start with the misnamed American right-wing realists (misnamed because they were in no way realists in the philosophical sense), from which almost all skepticism about immediate causality also flows. Henry and Mary argue over their custody agreement. Henry gives Mary a hard boost. Marie staggers back, is struck by lightning and dies instantly.

In this example, Henry`s act forced Mary to move to the area where the lighting hit. However, it would be unfair to punish Henry for Mary`s death in this case, as Henry could not have imagined the final outcome. Thus, although Henry is the factual cause or only the cause of Mary`s death, he is probably not the legal cause. Note that the essential factor test “solves” the overdetermination problem mainly because it doesn`t say enough to get you into trouble in such cases. This therefore allows our clear causal intuitions to come into full force in these cases. The ad hoc nature of this solution becomes apparent when one sees how the first and second tortious restatements managed to salvage what they were able to salvage from the sine qua non-test: if an alleged causal factor is a necessary condition for the damage, then it is (among the restatements) in itself substantial. In other words, the necessary condition – hood is indeed sufficient for the cause. But the necessary condition – the hood is actually not necessary for the cause, so a factor may be essential, even if it is not a necessary condition. This amounts to using the necessary state test if it works, but if it gives counterintuitive results (as in cases of overdetermination), it should not be used, but rather relied on causal intuitions that are not based on counterfactual relationships.

This is recognized in a recent revival of primitivism of both reformulations on causality, according to which one is explicitly tasked with finding either a counterfactual dependence on harm or a “real contribution” to that harm (Stapleton 2015). First, let`s look at the well-known predictability test. Unlike rules-based policy tests, there are no multitude of rules for specific situations (such as protracted death trials, intervening wrongdoers, railway fires, etc.). Rather, there is a general rule for all criminal and tortious matters: was it foreseeable to a defendant at the time of his action that his act would cause the harm he actually caused? (Green, 1967). This supposedly universal criterion of legal causation is usually justified by one of two directives: either the injustice of punishing (or compensating) someone for damages he could not have foreseen, or the inability to obtain deterrence by sanctioning such actors (since the threat value of tort liability or criminal sanctions for unforeseeable breach of liability rules is generally considered not to be is considered to exist). Causation is a question of both (1) facts and (2) law, and in both cases it is a question for the jury to decide:(1) Causation of facts: It must be proved that the event would not have occurred “without” the act of the accused. The action must be a cause sine qua non (“cause without which”) of the event. a test sometimes called the “but for” test.2) Legal cause: The defendant`s action must be a concrete and substantial cause of the result. His act does not necessarily have to be the sole cause, but must make a substantial and non-trivial (de minimis non curat lex) contribution to the result. For example, if a doctor takes a blood sample from a patient who has been stabbed and dies, the blood sample will weaken the patient, but the physician`s role in the patient`s death is minimal and causally insignificant. Sometimes a new act or event (novus actus (or nova causa) intervenes) can break the legal chain of causality and relieve the defendant of liability.

The causal chain between the defendant`s act and the resulting consequences is broken when another unforeseeable act occurs and “the second cause is so overwhelming that the original action is only part of the story” (Lord Parker CJ in R v Smith [1959] 2 QB 35, pp. 42-43). However, an alternative view of legal ends reduces law to the metaphysics of causality. According to this view, criminal law serves the value of retaliatory justice, just as tort law serves the value of corrective justice. Retributive justice requires that those who cause culpable harm be punished and deprived; Corrective justice requires that those who have wronged others correct that injustice by compensating that other. In both cases, service to these types of justice requires that the “cause” as used in the rules of legal liability not be identified as anything other than that with which it is identified in these theories of justice. Since such theories of moral justice require that the true metaphysics of causality determine when one has inflicted harm or other harm on another, so must the law of misdemeanours and felonies. In such an alternative vision of the justification of causal requirements in the law of misdemeanours and crimes, the lawyer must therefore “deal with the philosopher” with the metaphysics of causality. Those who are going through such an adventure themselves will not consider all candidates for the concept of causality of the law with equal support.

The only way to avoid redundancy for the predictability criterion is to turn to the other solution, the criterion of damage in risk. That is, the law could have said that in situations where the defendant had intentionally foreseen, anticipated or unreasonably risked damage of type H, but what actually caused his act was a case of damage of type J, the question had to be asked whether J was foreseeable, a different question from that asked and answered as mens rea (which concerned H). Of course, H J must be “close” so that there is a guilty spirit of the prejudice for which responsibility is sought. However, it is a question of doing the work of the harm at risk test, which consists of resolving what is called the “adjustment problem” of mens rea (matching the actual damage caused, J, to the intended harm, intentional or risky, H; Moore, 2011a). Moreover, it is wrong to do such work. Foreseeability is not the right issue to reconcile the harm actually caused by a defendant with the nature of the harm for which he or she is guilty (either because he intended or anticipated that he would cause such harm or because he risked it unreasonably). If, in order to avoid duplication, the predictability check is to be limited to this non-redundant work, it would be preferable to abandon it for the assessment of damage at risk. A difficult issue that has arisen recently is that the defendant does not factually cause the damage or increase the risk of it occurring. In Chester v Afshar [2004] 4 All ER 587 (HL), a physician negligently failed to warn a patient of the risks associated with surgery, in particular cauda equina syndrome.

[12] The patient underwent surgery and there was a risk that resulted in injury. [12] It was found that even if the patient had been notified, he would still have had surgery, simply at a different time. [13] The risk of harm would be the same in both cases. As a result, the doctor did not cause the injury (because without the lack of warning, the patient would still have performed the operation), nor increased the risk of occurrence (because the risk was the same in both cases).