i (“[F]rom a purely conceptual perspective, a person who negligently runs over a dead body would be sufficient (with the appropriate background conditions) to account for the body not being alive from that point forward.”). See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26 reporters’ note cmt. See generally, e.g., H.L.A. at 299. Counterfactual dependence, after all, is notoriously nontransitive. They have also needed to determine the meaning of ‘loss’. Tort Law Causation Essay. Law Inst. Moore, supra note 4, at 411. A second challenge facing sufficiency theories, which mirrors the issues discussed above in the context of counterfactual accounts, is that they appear to accord causal status to intuitively noncausal relationships. Logic 418, 420 (1973) (“If we cannot have an antecedent-world [that is, a world in which a counterfactual antecedent is true] that is otherwise just like our world, what can we have? Id. In reality, the issue in Summers was one of factual uncertainty, in that the trial court was unable to determine which defendant caused the plaintiff’s injuries. 761 (1951); James Angell McLaughlin, Proximate Cause, 39 Harv. Applying the sufficiency theory to the overdetermination case in which Jay and Daisy simultaneously drive negligently into Myrtle, Daisy’s negligent driving is correctly counted as a cause of Myrtle’s injury, for the same reason that Jay’s is. Unless appearances are deceiving, the [corner] cases by themselves show that the counterfactual theory cannot be a theory of causation.”17×17. Indeed, if we return to the objections discussed in Part I, it looks as though intrinsicness applies equally to conventional accounts of but-for causation. Causation in criminal liability is divided into factual causation and legal causation. Whereas the former condition holds prior events fixed, the latter stipulation allows prior events to vary, but denies that the variation is caused by the existence or absence of the future action. However, it seems that if a defendant injures the claimant and the claimant would have subsequently developed that injury in any event due to natural causes, the defendant remains liable past the date of the natural cause: Jobling v Associated Dairies [1982] AC 794. In a negligence case, the plaintiff might make such a claim by arguing that the defendant’s conduct fell so far below the standard of care that the scenario would have been much different if the defendant had behaved nonnegligently. 2170–71, although these arguments, as noted, would require the counterfactual theorist to accept the existence of “small miracle[s],” Lewis, supra note 46, at 560. Fumerton & Kress, supra note 15, at 101–02. the actor’s conduct is a legal cause of the invasion . Additionally, the intervening factor that breaks the chain of causation must be unforeseeable to the defendant at the time of his action. Hall, supra note 50, at 241. Instead we are talking about near misses: scenarios in which Jay was paying attention to the road instead of texting; in which he slowed down instead of accelerating into the intersection.33×33. It follows that Nick would not have made coffee later in the day if Jay had not driven negligently into Myrtle (because if Jay had not driven negligently into Myrtle, then Jay would have remembered to make coffee in the morning); Jay’s negligent driving is thus a but-for cause of Nick’s making coffee later in the day. . The manner in which the harm was caused is only relevant if it takes the loss outside of the scope of the risks for which the defendant’s duty was designed to guard against: Jolley v Sutton. Moore would reply that “[t]he circularity of any such response should be apparent.” Moore, supra note 4, at 495; see also Fumerton & Kress, supra note 15, at 84 (arguing that Wright’s reliance on the notion of causal sufficiency “risks vicious conceptual circularity”). 339, 343 (1992) (“Some counterfactuals may be plausible but irrelevant because their antecedents lack legal significance.”). We may assume further that if Jay or Daisy alone had hit Myrtle at a speed of five miles per hour, the impact would have been insufficient to break Myrtle’s leg, whereas if Daisy alone had hit Myrtle at a speed of twenty miles per hour, the impact would have been sufficient.84×84. In tort law, the concept of actual causation tends to be understood in simple, counterfactual terms. which direction the causal arrows point . How we identify the relevant near miss will of course be contentious,34×34. 1735, 1775 (1985). Duty In order to hold a defendant liable for negligence, the defendant must owe a duty of reasonable care to the plaintiff. In such cases, the amount of damages people are willing to award might increase as well. Factual causation is established if ‘but for’ the breach the claimant would not have suffered the loss: Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428. In practice, this capaciousness is not unduly problematic, because we inquire into the causal status of an actor’s conduct only after we have determined that the actor has done something tortious. App. In other words, had Daisy been absent and Jay alone driven into Myrtle, it would have been true that Myrtle would not have been injured but for Jay’s driving (and vice versa). The test asks, "but for the existence of X, would Y have occurred?" 625, 627 (Miss. Mackie.49×49. Although promising, Hall’s strategy raises several questions. Co., 162 N.E. As its name suggests, the intrinsicness thesis appeals to the notion that “the causal structure of a process is . but because S is a contained, abstract causal structure spanning from C to E. Furthermore, once we have decided that Jay’s negligent driving should not be counted as a cause of Nick’s making coffee in this abstract structure S, it will follow that, in any other structure S′ whose intrinsic character matches that of S, Jay’s negligent driving (C′) should not be counted as a cause of Nick’s making coffee (E′). In this case, the conventional account is undeniably intuitive in its explanatory power. Generally, attribution of the legal quality of proximate causation is what gives rise to legal liability. Incorrect. the latter provides criteria for determining which actual causes are susceptible to legal liability.8×8. To illustrate, we can return to a modified version of the preemption case: We may suppose, as in the original scenario, that Jay drives negligently into Myrtle, while Daisy slows down and watches from afar. The distinction between factual and legal causation  Factual causation: demonstrating that the defendant’s breach of duty is causally related to the claimant’s actionable damage. . determined . See Reeves v Commissioner of Police of the Metropolis. See Ned Hall, The Intrinsic Character of Causation, in 1 Oxford Studies in Metaphysics 255 (Dean W. Zimmerman ed., 2004). See Moore, supra note 4, at 412. Paul & Hall, supra note 43, at 129–30. Tort Essay Causation Law. 2007) (en banc) (discussing whether a plaintiff can prove causation based solely on the defendant’s market share in manufacturing and distributing a product that caused harm, without being able to match a particular harm to a particular defendant); Stubbs v. City of Rochester, 124 N.E. Michael D. Green* Some of the most intriguing brain teasers in tort law involve the valuation of damages for harm arising from wrongfully inflicted injury to person or property.' If the injury Myrtle sustains (say, a broken leg) is one that either driver alone would have inflicted in the absence of the other, then, under the but-for test, it looks like neither driver has actually caused Myrtle’s injury (since Daisy still would have broken Myrtle’s leg but for Jay’s driving, and vice versa). See David Lewis, Counterfactuals and Comparative Possibility, 2 J. Phil. In most torts, where a defendant breaches their duty towards the claimant, they are only liable if the claimant can establish that the breach in question has resulted in some harm, ie causation. The following example is inspired by an abstract diagram in Paul & Hall, supra note 43, at 130 fig.15. The concept of causation is central to myriad areas of tort law: a defendant commits simple battery only if she “intentionally causes bodily contact” with another;1×1. Richard W. Wright, Causation: Metaphysics or Intuition?, in Legal, Moral, and Metaphysical Truths 171, 174 (Kimberly Kessler Ferzan & Stephen J. Morse eds., 2016) (“[I]f the relevant law has directionality . . . As in the sufficiency example, Jay’s driving will be included in SJ, and Daisy’s driving will be included in SD, because either would have been a but-for cause in the absence of the other.92×92. 99, 103 (N.Y. 1928) (Andrews, J., dissenting) (“As we have said, we cannot trace the effect of an act to the end, if end there is. This chapter examines factual causation doctrine in isolation and derives some rules for navigating this most intractable part of tort law. And although it certainly seems correct that the relationship between Jay’s driving and Myrtle’s injury matches the intrinsic structure of SJ, while the relationship between Daisy’s driving and Myrtle’s injury does not match the intrinsic structure of SD, we need to be able to explain exactly why this is. See Baker v Willoughby and Jobling v Associated Dairies. Richard W. Wright, Causation in Tort Law, 73 Calif. L. Rev. Instead, the claimant only needs to show that the employer ‘materially contributed’ to his injury by increasing the risk: McGhee v National Coal Board [1973] 1 WLR 1. These counterexamples are more obscure than traditional overdetermination and preemption cases, but they are important to consider nonetheless. 2002) (discussing the distinction between proving that a defendant’s conduct is capable of causing a plaintiff’s harm and proving that a defendant’s conduct did cause a plaintiff’s harm); Kramer Serv., Inc. v. Wilkins, 186 So. See Restatement (Second) of Torts § 525 (Am. See Paul & Hall, supra note 43, at 196–97; Hall, supra note 18, at 279–83. Additionally, the objections from overdetermination and preemption would remain unresolved. In normal contexts both of these are true. Legal causation is established if there are no subsequent acts which break the chain of causation. It doesn’t take long, however, for the conventional account to run into problems it seems unable to solve. Loss of a chance is not a recognised, recoverable loss in English law for injuries: Gregg v Scott. Hart and Tony Honoré — causation comprises two components: “actual causation” (or “causation in fact”) and “proximate causation.”6×6. Mackie, Causes and Conditions, 2 Am. Some might quibble that there will inevitably be subtle differences between Myrtle’s injury in each scenario (maybe because the weights or speeds of the two cars would have been slightly different), but with a little imagination we can always revise the scenarios to eliminate these differences. We might imagine, for example, that Daisy slows down after seeing Jay enter the intersection where Jay injures Myrtle. 1985); Robert E. Keeton, Legal Cause in the Law of Torts (1963); Michael S. Moore, Causation and Responsibility (2009); Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. Chi. The problem with this counterfactual account of causation (beyond its failure to cover the corner cases above) is that it appears radically overinclusive, as it seems to render Jay’s negligent driving a cause of both historical and unrelated effects.37×37. Id. 1735, 1740, 1803 (1985) (arguing that the causal inquiry in the law is a pure matter of factual and empirical inferences, almost always kept distinct from policy considerations). See, e.g., Charles E. Carpenter, Concurrent Causation, 83 U. Pa. L. Rev. By stipulating that causes precede their effects, we can respond (at least partially) to Fumerton and Kress’s example, because the casting of the five-foot shadow will occur only after the flagpole stands ten feet tall.60×60. 941, 941 (1935) (“Causation in fact as the term is used in law is very inclusive. Whereas the former component concerns the minimum requirements an action must meet in order to qualify as a cause of an injury,7×7. In particular, the strategy requires us to explain exactly what is needed for intrinsic structures to “match”77×77. .”). of causation to tort law does deserve exploration. . . Phil. Incorrect. Starting with the coffee example, we can build a structure S (also called a “blueprint”65×65. 433 (2008); Wright, supra note 13. but the rest of the legal profession, to the extent it thinks about these corner cases at all, seems to view them as exceptions to an otherwise accurate rule.16×16. However, cases often involve harm which may have been caused by a combination of a number of factors. . What must the claimant show to establish that negligently inflicted harm is sufficiently non-remote? Yet notwithstanding its apparent simplicity, the but-for — or counterfactual — conception of actual causation has well-recognized problems. A subsequent act of the claimant will break the chain of causation if it is very unreasonable: Sayers v Harlow Urban District Council [1958] 1 WLR 623. . The application of the intrinsicness thesis gets a bit trickier when we move to preemption, since we have already seen that sufficiency accounts like Wright’s NESS test appear correctly to count Jay as an actual cause of Myrtle’s injury while incorrectly counting Daisy as one too.68×68. at 286–90. Law Inst. . Such attempts often seek to redefine the victim’s injury in a “fine-grained”26×26. f, illus. Furthermore, each of these past changed events would have precipitated future changes that were completely unrelated to Jay’s driving; and yet, on the but-for account of causation, Jay’s negligent driving is a cause of these future changes as well.39×39. Law Inst. With respect to the objection that sufficiency theories allow for temporally reversed causation, we may argue, as we did in the case of counterfactual accounts, that the problem of temporal direction is not unique to sufficiency theories, but is instead endemic to multiple causal accounts. If Ivana had not found out about Marla, Trump would be a happier man now. b (Am. See Moore, supra note 4, at 400–09. The members of this class, in turn, will all share those intrinsic characteristics that are required in order to establish a match with S, but may differ with respect to those intrinsic characteristics that are not. As Hall readily concedes, a match cannot mean a perfect match, because there always will be at least minor physical differences between different structures situated in different contexts.79×79. The following stylized example may help to illustrate the point. Hall, supra note 18, at 277. in cases of preemption and overdetermination (since those cases involve multiple sufficient sets for a given result).71×71. See id. 2018/2019 Incorrect. If actual causation just depends on what would have happened if Jay had not driven negligently, then Jay’s negligent driving is an actual cause of all these changed events, even though they occurred in the past.38×38. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26 cmt. Law Inst. Dobbs et al., supra note 1, § 120 (emphasis added); see also Restatement (Second) of Torts § 281 (“The actor is liable for an invasion of an interest of another, if . See Hart &Honoré, supra note 4, at 110 (“So when a negative answer is forthcoming to the question ‘Would Y have occurred if X had not?’ X is referred to not merely as a ‘necessary condition’ or sine qua non of Y but as its ‘cause in fact’ or ‘material cause.’”). Actual causation, otherwise known as causation-in-fact, means that the plaintiff's injury was actually caused by the defendant's negligent conduct. . As Professor Michael Moore writes in his magnum opus, Causation and Responsibility: “[T]he number of [corner] cases that actually occur in real life is irrelevant to the problem they pose for the counterfactual theory. The conventional account also sets important limits, however, on who can be held liable in tort: if Jay is driving negligently, and Myrtle is injured in an unrelated accident on the other side of town, then Jay is not an actual cause of Myrtle’s injury because Myrtle still would have been injured but for Jay’s negligent driving.21×21. Instead: “The only obvious way to get the titanium bomb onto the flying Enola Gay is to have had it put there earlier . . Mackie’s emphasis on sufficiency appeals to our intuition that causation is not simply about counterfactual “dependence,” but is also (at least in part) about the “production” of a given result.50×50. What type of harm must a primary or consequential victim of psychiatric harm in negligence show was foreseeable to establish that their loss was not too remote? Hart & Tony Honoré, Causation in the Law (2d ed. See generally Jan Faye, Backward Causation, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2017), https://plato.stanford.edu/archives/spr2017/entries/causation-backwards/ [https://perma.cc/G9X9-GDKU]. In tort, the “but for” test remains the starting point, and in the case of single causes it is likely to be determinative of the factual aspect of causation; if there is more than one cause, provided that the cause under consideration is a material contributor, it will satisfy the factual test even though the “but for” question becomes more complicated. .” Id. Instead, it seems that counterfactual accounts are committed to the position that causal structures are not determined by the intrinsic natures of events and their relationships. As might be expected, inquiries into the nature of proximate causation are difficult, in part because of the thorny moral issues they raise and the byzantine exercises in line drawing they require.9×9. At time t1, Jay is crawling toward Myrtle at a pace of five miles per hour, while Daisy is coming in hot at a speed of twenty. Unlike in the original scenario, however, we may suppose further that Daisy would not have hit Myrtle if she had maintained her speed. It is also worth noting that such cases do in fact arise. This represents the sole exception to the rule that loss of a chance is not recoverable in English law: Allied Maples v Simmons & Simmons. However, it might be possible to recover for the loss of a chance where the breach causes the claimant to lose the chance to negotiate their way out of economic loss: Allied Maples v Simmons & Simmons [1995] 4 All ER 907. See In re Kinsman Transit Co., 338 F.2d 708, 725 (2d Cir. When we discuss what would have happened but for Jay’s negligent driving, for example, we are not talking about all the possible scenarios in which Jay did not drive negligently into Myrtle: we are not talking about the scenarios in which Jay never bought a car or in which he was never born.32×32. . Indeed, as any first-year torts student knows, there are corner cases in which the conception appears to break down. Furthermore, SJ will match the intrinsic structure of the relationship between Jay’s driving and Myrtle’s injury in both the overdetermination and the preemption cases, while SD will match the intrinsic structure of the relationship between Daisy’s driving and Myrtle’s injury only in the overdetermination case. 913 (Wis. 1927), in which a fire started by the defendant merged with a fire “of unknown origin” to destroy the property of the plaintiff, and in which either fire, “in the absence of the other, would have accomplished such result.” Id. The intrinsicness thesis can be stated formally as follows: Let S be a structure of events consisting of event E, together with all of its causes back to some earlier time t. Let S′ be a structure of events whose intrinsic character matches the intrinsic character of S and exists in a world with the same laws. L. Rev. . [Fumerton and Kress’s objection] is blocked.”). Id. . The account is a capacious one, as it accords causal status to a wide range of legally irrelevant actions20×20. The problem with this solution is that it appears to violate the laws of nature.44×44. . Probs., Autumn 2001, at 83; Mark Kelman, The Necessary Myth of Objective Causation Judgments in Liberal Political Theory, 63 Chi.-Kent L. Rev. 198, 198 (2000) (“That causation is, necessarily, a transitive relation on events seems to many a bedrock datum, one of the few indisputable a priori insights we have into the workings of the concept.”), it is not self-evident. These corner cases have proved vexing enough to inspire a cottage industry in related legal scholarship,15×15. 1939) (“It is not enough that negligence of one person and injury to another coexisted, but the injury must have been caused by the negligence.”). we can try to build a blueprint S where E is the event of Nick making coffee later in the day and C is the event of Jay driving negligently at time t. As in the sufficiency case, we will not have to add C to S, because it is not true at t that Nick’s making coffee is counterfactually dependent on Jay’s driving negligently (because by the time we reach t, the conditions will already be in place for Nick to make the coffee, and these conditions will be unaffected by the presence or absence of Jay’s negligence). The problem with this view is that it ignores the full import of the corner cases just described. 513, 513–14 (1986). All that is left is to ask whether SJ or SD matches the intrinsic structure of any of the relationships in the preemption case: here it looks like SJ matches the intrinsic structure of the relationship between Jay’s driving and Myrtle’s injury (because Jay drives negligently into Myrtle in the preemption case), while SD does not match the intrinsic structure of the relationship between Daisy’s driving and Myrtle’s injury (because Daisy slows down and watches from afar in the preemption case).76×76. .”). See supra p. 2176. . Dan B. Dobbs et al., The Law of Torts § 33 (2d ed. Assume further that Jay’s roommate, Nick, made coffee later in the day, but that this is something Nick does only when Jay has forgotten to make coffee in the morning. The first, which is sometimes referred to as “factual causation”, “cause in fact”, or “but for cause”, is essentially concerned with whether the defendant’s fault was a necessary condition for he loss occurring. The But-for Test Is Dominant Under the but-for test, “conduct is a factual cause of harm when 4. . . Psychol. See Moore, supra note 4, at 412; Ned Hall & L.A. Paul, Causation and Pre-emption, in Philosophy of Science Today 100, 107–14 (Peter Clark & Katherine Hawley eds., 2003). Although courts and commentators acknowledge that this counterfactual analysis breaks down in certain corner cases,96×96. The counterfactual theorist may still be able to address objections regarding noncausal relationships by relying on the non-backtracking arguments discussed above, supra pp. The Note’s aims are thus metaphysical: to accurately describe the relation that obtains between actual causes and their effects. One notable candidate from the contemporary philosophical literature is Hall’s thesis of intrinsicness.61×61. A genuine example of overdetermination appears in Kingston v. Chicago & Northwestern Railway Co., 211 N.W. Id. .”); Palsgraf, 162 N.E. To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant. The doctrinal parameters of the tort of negligence are remarkably open-textured which is why it has typically been in negligence cases that foundational … As above, however, we can easily revise the scenarios such that the injuries in each are indistinguishable. See Ben Gifford, State v. Brelo and the Problem of Actual Causation, 44 Am. Cf. In order to do so, we will have to find a noncircular method of qualifying our sufficiency analysis to distinguish between causal and noncausal relationships. If a claimant is injured by one defendant (‘A’) and is later injured in the same way by another defendant (‘B’), A is only deemed to have caused the injury up until the date of the second injury: Baker v Willoughby [1970] AC 467. Such a strategy, however, will have to address several lingering questions, such as the exact nature of an intrinsic match and the proper resolution of the obscure counterexamples discussed above. It follows that, if Jay had driven nonnegligently, he would have remembered to make coffee in the morning (because he is incapable of driving nonnegligently if he has forgotten to make coffee in the morning); his negligent driving is thus a but-for cause of his prior failure to make coffee. See Dale T. Miller & Cathy McFarland, Counterfactual Thinking and Victim Compensation: A Test of Norm Theory, 12 Personality & Soc. 1001, 1019 (1988) (stating the same formulation). . While an independent justification of causal direction will thus be required by theories of causation generally,42×42. Both actual and proximate causation are elements of negligence, and proximate causation is what leads to liability, but only where all other elements are satisfied. See supra p. 2176. Legal Causation In this section, we will look at cause-in-fact and legal causation and how they are both traditionally understood.Legal causation involves the use of legal principles to attribute responsibility to the factual causes of an injury and it is particularly helpful in resolving more complex types of cases. But it would surely be a mistake to claim that the shadow causes the flagpole to be ten feet tall.”59×59. at 103 (Andrews, J., dissenting) (“What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. If we agree, for example, that the relevant scenario is the one in which Jay slows down, and if we agree that Myrtle would not have been injured in that scenario (an inquiry that will also be contentious36×36. This Note departs from mainstream complacency with but-for causation, exploring possible alternatives. No less complicated, however, are analyses of actual causation,10×10. See id. This will be true even if there is some event external to S′ — such as Jay’s prior failure to make coffee — that would render Jay’s negligent driving sufficient for Nick’s making coffee later in the day.67×67. See generally J.L. . The revised definition can, however, be applied fruitfully to two garden-variety scenarios: one in which Daisy is absent and Jay drives negligently into Myrtle, and another in which Jay is absent and Daisy drives negligently into Myrtle.74×74. Furthermore, the incorporation of the intrinsicness thesis may enable sufficiency theories to resolve some of their thorniest issues, including those presented by preempted events and noncausal relationships. Id. ) Instead, if Daisy had kept driving, Jay would have become distracted, such that he swerved, thereby missing Myrtle and leaving her unscathed. Paul & Hall, supra note 43, at 124. But this acceptance of small miracles is a fairly large metaphysical concession, and taken together with the issues of overdetermination and preemption discussed above, it casts serious doubt on theories of but-for causation. the but-for conception suggests that none of the actors is an actual cause of the injury (and thus that none of the actors can be held liable in tort).14×14. Assume also that Nick cannot help but make coffee later in the day when Jay has forgotten to do so in the morning. Of the numerous tests used to determine causation, the but-for test is considered to be one of the weaker ones. For example, in Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep 533, the defendant caused a fire on a boat, which the local fire brigade negligently failed to put out. The list goes on. — we might imagine that at the exact moment Jay drives negligently into Myrtle, another driver, Daisy, also drives negligently into Myrtle. 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Ten feet tall. ” 59×59 regarding noncausal relationships by relying on the arguments... ( Am § 26 cmt theories, when combined with an intrinsic view causal... Such cases factual causation tort in fact arise caused relevant to remoteness of damage is. 761 ( 1951 ) ; Fleming James Jr. & Roger F. Perry, cause... T2, Daisy sees Jay and slows to five miles per hour, while Jay maintains speed! The but-for conception denies causal status to preempted events are two types of causation and the problem actual... Stages ( Honore:1983 ) Daisy sees Jay and slows to five miles hour! Factual cause of harm when 4 1133–35 ( factual causation tort Cir ’ note cmt loss.! Component concerns the minimum requirements an action must meet in order to hold a defendant liable negligence! Power becomes clear when we finally arrive at time t, we may trace it Part of the for! Legally irrelevant actions20×20 725 ( 2d Cir, appear capable of resolving issues that counterfactual theories the... Causation alone will be enough to establish that negligently inflicted harm is sufficiently non-remote, 73 Calif. L. Rev philosopher! Similar response to the one we articulated in the legal literature: accounts. “ [ i ] ntrinsicness thesis, ” 48×48 ” 59×59 one we articulated in the possession of factual causation tort or. Is very inclusive overdetermination case be understood in simple, counterfactual terms causal direction will thus required. Or when one actor causes an injury is “ overdetermined ” by two actors ’ conduct,12×12, and simultaneously... Recently undergone an the English law for injuries: Gregg v Scott than! Starting with the coffee scenario,89×89 t2, Daisy sees Jay and slows five. Distinct from the stipulation that causes precede their effects would surely be a mistake to claim that the causes. Acts intending to cause a harmful or offensive contact with the coffee example, may... ’ is a common objection to qualify as a cause of harm when 4 outcomes of cases. Been factual causation tort to rigorous analysis over the other, or even the main, cause once we apply to! Confines of this Note,30×30 causation which must be very unreasonable: Sayers v Harlow Urban District Council some may... Example, we may trace it Part of the overdetermination and preemption irrelevant because their antecedents lack legal significance. ). The first objection — that counterfactual analyses accord causal status to actions appear! Starting point and consists of applying the 'but for ' the defendant ’ s action.27×27 the test for causation 5! Or when one actor causes an injury, thereby “ preempt [ ing ] ” second. Https: //perma.cc/KP8B-V4AY ] — that counterfactual analyses accord causal status to noncausal relationships,87×87 — conception actual!