Causation can be one of the most difficult elements of negligence to prove. But that`s also the most important thing. Without a causal link, a defendant cannot be held financially liable for damages, even if he or she is guilty of wrongdoing. The extension of this criterion to criminal offences or harmless offences requires some changes. For criminal offences or offences of strict liability for which no mens rea is required, the test requires that the damage occurring be one of the types of damage whose risk motivated the legislator to prohibit the conduct. In the case of a tort or offence requiring knowledge (or “general intent”) of their mens rea, the test is whether the damage suffered was a case of the kind of damage for which the defendant made them guilty. In the case of acts or omissions that require a purpose (or “specific intent”) for their mens rea, the test is whether the harm that occurred was a case of the kind of harm intended by the defendant whose intent made him guilty. Causality legally refers to the cause-and-effect relationship between an event or action and the outcome. It is the action or process that produces an effect.
More serious for counterfactual theories is the objection that these reports allow causality between unrelated events, such as Jay`s negligent conduct and Nick`s coffee brewing later in the day. Here we cannot resolve the objection simply by prefacing the causes with their effects, since Jay`s negligent conduct precedes the preparation of Nick`s coffee. Instead, the standard approach in the philosophical literature is to impose a “non-retrograde” condition on counterfactual analysis, so that we record all previous events when we ask what would have happened without a particular action.43×43. L.A. Paul & Ned Hall, Causation: A User`s Guide 17 (2013). The imposition of a non-reversal condition is analytically different from the determination of the causes preceding its effects. While the first condition records previous events, the last provision allows previous events to change, but denies that the deviation is caused by the presence or absence of the future action. For example, if we ask what would have happened if Jay hadn`t driven negligently, we note that he forgot to make coffee that morning. Since this previous event has been corrected, it follows that Nick would have made coffee later in the day, regardless of Jay`s negligence (because Jay forgot to make coffee), and the latter is therefore not a cause of the former. A late flowering of this legal realist conclusion was the well-known work of Wex Malone (1956).
Malone focused extensively on a theme that preoccupied causal philosophers in the 1950s: the pragmatic characteristics by which we select “the cause” of an event (Feinberg 1970: 143-147). Malone found, not surprisingly, only context-specific practical interests guiding such locusions of causal accentuation, and concluded skepticically that this was all there was to causality itself. Saying that you are “the cause” of the damage was just another way of saying that you were responsible for the damage. The most obvious objection to this approach is that it requires courts to consider what is likely to be an infinite possibility of hypothetical situations. [14] Not only can such an undertaking be an unnecessary exercise, but this approach also lacks a modicum of precision, so that parties may be able to predict outcomes and outcomes during litigation. Despite the already complex nature of these and other issues of immediate or legal grounds, this fluid standard could be abused by pro-plaintiff or pro-defence judges to justify their own personal philosophies regarding the appropriate scope of tort law. 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.