Tests of Proximate Cause
Tests of Proximate Cause
Tests of Proximate Cause
Tortious Acts
Law of Torts- I
Submitted by:
Submitted to:
Vrinda Vinayak
2014
National Law University, Delhi
Table of Contents
Serial No.
Chapter
Page
Declaration
ii
Acknowledgements
iii
Synopsis
iv
Table of Cases
viii
Chapter 1: Introduction
12
Chapter 5: Conclusion
13
10
Bibliography
16
Declaration
I hereby declare that the work reported in the B.A. LL.B (Hons.) Project Report entitled The
Tests of Legal Cause in Tortious Acts submitted at National Law University, Delhi is an
authentic record of my work carried out under the supervision of Mr. Prem Chand. I have not
submitted this work elsewhere for any other degree or diploma. I am fully responsible for the
contents of my Project Report.
Vrinda Vinayak
1st year
B.A. LL.B. (Hons.)
National Law University
Delhi
3rd November 2014
ii
Acknowledgments
I feel very privileged in expressing my gratitude to Mr Prem Chand and Dr Sushila for permitting
me to move forward with this research project and providing valuable inputs. This project could
not have been completed but for her able guidance.
I would like to thank Dr Priya Rai, Chief Librarian, National Law University Delhi, for enabling
me to utilize the library resources efficiently.
I also extend my gratitude towards my parents and my classmates who encouraged me and assisted
me directly or indirectly with my research.
Vrinda Vinayak
1st year
B.A. LL.B. (Hons.)
National Law University
Delhi
iii
Synopsis
1. Introduction:
In the law of torts, the phrase legal cause is defined as the conduct that is a substantial factor in
bringing about harm, which is synonymous with proximate cause. In other words, it is the term
that is used for the real cause of an accident or an injury. Legal cause can also be restated as
causation, which is the causal relationship between conduct and result. It provides a means of
connecting conduct with a resulting effect, typically an injury.
It has been mentioned above that legal cause is the same as proximate cause. In the law,
a proximate cause is an event sufficiently related to a legally recognizable injury to be held to be
the cause of that injury.
There are two types of causation in the law: factual cause, and proximate (or legal) cause. Causein-fact is determined by the "but for" test: But for the action, the result would not have happened.
For example, but for Mr. As negligence, the collision which caused harm to Mr. B would not have
occurred. For a tortious act to cause a harm, both tests must be met; proximate cause is a legal
limitation on factual cause.
Where establishing causation is required to establish legal liability, it involves a two-step inquiry.
The first stage involves establishing factual causation. Did the defendant actually act in
a way that caused loss to the plaintiff? This must be established before inquiring into legal
causation.
The second stage involves establishing legal causation. This is often a question of public
policy: is this the sort of situation in which, despite the outcome of the factual enquiry, we
might nevertheless release the defendant from liability, or impose liability?
This research project aims to enquire into the second stage, i.e. the study of legal (proximate) cause
and present an analysis of the tests employed to determine legal cause in a tortious act.
iv
2. Literature Review:
The possible sources for this research paper are as follows:
2.1 Reference Books:
2.2 Articles/Journals:
Barnett v. Chelsea and Kensington Hospital Management Committee (1969): When three
night watchmen presented themselves to a nurse in the hospital complaining that they had
been vomiting and the casualty doctor on duty failed to examine them. One of them later
died of arsenic poisoning from the tea ha had taken earlier. Thus, the doctor not examining
him was not the proximate (legal) cause of his death, and the but-for factual test failed.
Thus, the hospital was not liable.2
Ganga Sugar Corporation Ltd & ors v. Sukhbir Singh: A jeep driver in the course of his
employment left the ignition keys in the jeep when he left it on a crowded road, and
someone drove the jeep in his absence and caused an accident. It was held that the
negligence of the driver, not the driving by the third person was the effective and proximate
cause of the accident.3
5. Hypothesis:
The hypothesis for this research project is as follows: Factual cause, or cause-in-fact, has to be
determined before delving into legal or proximate cause. Usually, the courts employ the but-for
test to determine factual causation and the next step is to determine legal cause. But currently,
vi
there does not exist any one test or method to determine legal cause which can be applied to all
cases. These tests have to be tailored according to the facts of individual cases.
6. Research Questions:
a) How do the courts define the term legal cause as used in reference to actions of tort?
b) What are the reasons for limiting liability of the defendant to the proximate causes?
c) Which tests have been applied by courts till date and what are their advantages and
disadvantages?
d) What are the perspectives of scholars and jurists regarding these tests?
e) Is there any test for legal cause which can be applied universally without any
discrepancies?
vii
Table of Cases
S.No.
DeLong v. Miller & Lux (1907) 151 Cal. 227, 90 Pac. 925
Lawrence v. Southern Pacific Co. (1922) 189 Cal. 434, 208 Pac. 966.
10
Ganga Sugar Corpn Ltd & ors v. Sukhbir Singh AIR 1974 All 113
11
12
13
Sawdey v. R. W. Rasmussen Co. (1930) 107 Cal. App. 467, 290 Pac. 684.
14
Moon v. First National Bank of Benson (1926) 287 Pa. 398, 135 Atl. 114
15
16
Memphis & Birmingham R. R. Co. v. Lackey (1896) 114 Ala. 152, 21 So. 444.
viii
17
Polemis and Furness v. Withy & Co., [I92I] 3 K. B. 560 (C. A.).
18
19
20
ix
Chapter 1: Introduction
Tort liability is usually considered as having three components: a wrongful act or omission, a chain
of causation, a form of damage that the law will recognize. 1 In this trifurcation "wrongful conduct"
has conventionally meant the creation of unreasonable risk of injury to anyone;2 once this is found,
it has been felt that the actor should respond for all the results so long as they are proximately
connected with his conduct.3
The first question in causation is related to actual cause or cause in fact. The word "cause," where
cause in fact is implied, has a more inclusive meaning in law than it has in popular usage. In
common usage cause is confined to those antecedent events which are conceived of as creating or
producing the event in question. In law, however, it means any and all antecedents, active or
passive, creative or receptive, which were factors involved in the occurrence of the consequence.
For example, if A sells B a rope and B uses the rope to hang himself, A is regarded in the law as
the cause in fact of B's hanging; or if X drives his car down the street and it is struck and destroyed
by lightning, X's driving the car is a cause in fact of the car's destruction. 4
Cause in fact is essential to liability,5 but liability must be further delimited. The problem of
proximate cause is based on determining when a tort-feasor shall be exempt from liability for
consequences arising from his wrongful act. The requirement of proximate or legal cause merely
limits liability to those causes in fact which are of sufficient causative significance or of such
substantial nature as causes to warrant the law treating them as responsible causes.6
Smith, Legal Cause in Actions of Tort 25 HARV. L. REV. 103 (1911); Beale, the Proximate Consequences of an
Act 33 HARV. L. REV. 633, 637 (1920)
2
McLaughlin, Proximate Cause 39 HARV. L. REV. 150, 164 (1925). Smith v. London & S. W. R. Co., 6 L. R. C. P.
14, 20 (1870)
3
Torts. Negligence. Proximate Cause, Columbia Law Review, Vol. 33, No. 3, 546-547 (March, 1933)
4
Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259, 229 (March
1932)
5
DeLong v. Miller & Lux (1907) 151 Cal. 227, 90 Pac. 925; Lawrence v. Southern Pacific Co. (1922) 189 Cal. 434,
208 Pac. 966.
6
Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March
1932)
Proximate is the word most commonly used by the courts to express the relationship of cause to
consequence. Its meaning in common, everyday usage of "near" has often led to misapplication of
this principle by the courts. For instance courts sometimes assume that there can be but one
proximate cause of a consequence or that if some cause is "more proximate" than the one for which
it is sought to hold the defendant, the defendant's cause is remote. 7 This erroneous conception is
responsible for the wrong explanation frequently given for the non-liability of the defendant in
cases of contributory negligence on the part of the plaintiff.
The test of proximateness or proximity is of long standing and has the support of the maxim of
Bacon: In jure non remota causa, sed proximia spectatur, It were infinite for the law to judge
the cause of the causes, and their impulsions one of another; therefore it contented itself with the
immediate cause and judegeth of acts by that without looking to any further degree.8 It is true that
generally speaking, the conscious act of volition nearest in point of time to injury, is in law, the
responsible cause.9 But it is not always the sole deciding factor. A person who drives his car
negligently and causes a street accident may be liable to pay for the loss of limb of the injured man
though the proximate act which caused the loss of limb was the surgeons amputation. He may
even have to pay the surgeon if he made an honest mistake; but it would be otherwise if the surgeon
was guilty of malpractice.10
The principle is that the defendant must take the plaintiff as he found him. In the absence of any
novus actus interveniens, the defendant becomes liable for the consequences even though they
could not have been reasonably forseen or they could be as bad as they turned out to be. 11 This
was a case where the plaintiff in the service of the defendant slipped and fell because of oil which
was negligently allowed to escape on to a ladder. The injury sustained by the plaintiff required
medical treatment as a result of which the plaintiff developed encephalitis. The defendants were
held liable for the same.12 It has been recognised that injury sustained in one accident may be the
cause of a subsequent injury. In one case,13 the plaintiff, a passenger in a bus, suffered an injury
caused by the admitted negligence of the defendant. After going to the hospital, the plaintiff was
shaken and the movement of her neck was restricted by a collar which had been fitted. In
consequences, she was unable to use her bifocal spectacles with her usual skill and she fell while
descending stairs, and sustained further injuries. It was held that the initial damage and subsequent
injury were both attributable to the original negligence of the defendants, so as to attract
compensation from them.
The Test of Proximity is of no avail where there is a duty to anticipate and guard against the
intervention of other causes, for example, a bailees negligence resulting in loss due to the goods
being stolen by a thief.14 A jeep driver in the course of his employment left the ignition keys in the
jeep when he left the jeep on a crowded road, and someone drove the jeep in his absence and
caused an accident. It was held that the negligence of the driver was the effective proximate cause
of the accident.15
It is important to note that proximate causation is of three types or classes: (i) direct causation, (2)
causation by dependent intervening forces, and (3) causation by foreseeable independent
intervening forces, the risk of whose intervention was created or increased by the defendant.16
14
If, for instance, the court is called on to investigate the dropping of some substance, the court will
watch it while it falls through the air; it will continue to watch it after it has fallen into an unstable
or dangerous position; but as soon as it has reached a safe and stable rest the court will turn away
to the investigation of some other act.
But expedition of the trial of cases in courts of law cannot be the only explanation of the Doctrine
of Proximate Cause. Proof of cause in fact be dispensed very rarely on the grounds that it was
shown that it would be remote. In practically all cases, when the question of proximate cause arises,
the lawyer or the court has a definite consequence and a definite act or breach of duty of the
defendant in mind and the question for which an answer is sought is, is this wrong of the
defendant's a proximate cause of the consequence in question?18 In most instances, the question
whether there is a cause in fact relation between the defendants wrong and the harm suffered by
the plaintiff is easily discovered and usually answered before the question of proximate cause is
approached.
The securing of justice is sometimes urged as the basis of the requirement of proximate cause.
When a damage to the plaintiff occurs through the operation of several factors some of which are
more substantial than the one for which the defendant is responsible, it may appeal to most persons
as unjust, particularly if the defendant's factor is trivial, to permit the plaintiff to throw the whole
loss on the defendant. As there is no known method of properly apportioning the loss between the
plaintiff and defendant, either one of them have to bear the whole loss (except in cases of
contributory negligence) it will in many instances seem more satisfactory to leave the loss where
it originally falls i.e. have the defendant bear the entire loss, which may not be fair in all cases.
Carpenter stipulates that another reason for delimiting liability through this added requirement that
the defendant's wrong must bear a relation of proximate cause to the consequence is a great
reduction of the burden thrown on courts of shifting losses from defendants to plaintiffs. This
burden will be more fully reduced if the rules of proximate cause can be made certain and definite.
Further, to permit the plaintiff to hold the defendant liable in every case where cause in fact exists
18
Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March
1932)
no matter how insignificant a factor defendant's cause may have been will unduly hamper
legitimate activity.19
The principle of proximate cause and the specific rules laid down to aid in the application of that
principle should not be confused with the reasons or the object for which it exists. Rules of law
must be definite and practical. Practically all rules of law have as the basis of their existence one
or more of the following reasons, namely, public policy, justice, fairness or expediency. But
legal scholars argue that these reasons are not in themselves rules and are not workable as such.
Many of the proposed tests of the proximate or legal cause are not rules of law but reasons for
rules. In the field of culpability so in the field of proximate cause or substantial factor more specific
and definite rules are needed to make the requirement practically applicable.
Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March
1932)
20
SELECTED ESSAYS ON THE LAW OF TORTS (1924) 652; Smith, Legal Cause in Actions of Tort (1911) 25 HARv. L.
REv. 106.
21
Beale, Recovery for Consequence of an Act (1895) 9 HARv. L. REV. 80, 81.
The last wrongdoer rule has recently been the subject of a lot of criticism22, but still finds
considerable following. It holds that the last wrongful human actor is to be the responsible cause
and all antecedent actors thereto should be exempted. The rule brings a correct result in many cases
where it holds the last wrongful human actor to be liable and it sometimes gives a sound result to
exclude earlier wrongful actors from responsibility, but in both situations there are too many
exceptions to make it a useful rule. For example, we may often exempt the last wrongdoer from
liability where an Act of God, an independent unforeseeable natural circumstance intervenes to
cause the injury immediately. A courier service company wrongfully delays the shipment of goods,
but on sending them forward after the wrongful delay, they are struck by lightning. In such a case,
the courts may relieve the courier company, the last wrongdoer, from liability for the destruction
of the goods. On the other hand, there are several cases where the defendant, who is not the last
wrongdoer, is held liable.23 Thus, where the defendant who negligently leaves property exposed
where he can reasonably foresee a thief will steal it should not escape liability for its loss and does
not by the decided weight of authority although he was not the last wrongdoer.24
22
Mahogany v. Ward (1889) 16 R. I. 479, 17 Atl. 860; Lynch v. Knight (1861) 9 H. L. Cas. 577; BORLEN,
STUDIES IN THE LAW OF TORTS (1868) 112, 335, 504, 507.
23
Sawdey v. R. W. Rasmussen Co. (1930) 107 Cal. App. 467, 290 Pac. 684.
24
Moon v. First National Bank of Benson (1926) 287 Pa. 398, 135 Atl. 114
25
Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March
1932)
26
Case taken from Edgerton, Legal Cause, 72 U. or PA. L. REV. 211, 224 (1924)
The main objection to the but for rule is that it is more appropriate to establish cause in fact
rather than legal cause. The absurdity of the "but for rule" as a test of legal or proximate cause
was demonstrated by Justice Ladd in Gilman v. Noyes27, where the defendant had left down pasture
bars which made possible the escape of plaintiff's sheep and they had escaped and were killed by
bears. The trial court had instructed the jury, "that if the sheep . . . escaped in consequence of the
bars being left down and would not have been killed but for the act of the defendant, he was liable
for their value." Justice Ladd, in discussing this test, observed, "But it is equally certain, without
any finding of the jury, that they would not have been killed by bears if the bears had not been
there to do the deed; and how many antecedent facts the presence of the bears may involve, each
one of which bore a causative relation to the principal fact sufficiently intimate so that it may be
said the latter would not have occurred but for the occurrence of the former, no man can
sayObviously the number of events in the history not only of those individual bears, but of their
progenitors clear back to the pair that, in instinctive obedience to the divine command, went in
unto Noah in the ark, of which it may be said, but for this the sheep would not have been killed, is
simply without limit. So the conduct of the sheep, both before and after their escape, opens a field
for speculation equally profound and equally fruitlessSuch a sea of speculation has neither
shores nor bottom, and no such test can be adopted in drawing the uncertain line between
consequences that are actionable and those which are not."
While the "but for" rule may be applied negatively to exclude liability, it is frequently too broad
to apply affirmatively to impose liability.28 Thus, in Orton v. Pennsylvania Railroad Company,29
where the plaintiff sustained injuries when a negligently driven automobile in which he was a
passenger collided with the defendant's train negligently left blocking a highway at night and
without lights, the court held that the proximate cause of the injury was the carelessness of the
driver of the automobile whose lights would disclose substantial objects on the highway ahead for
a distance of two hundred feet, and that the defendant could not be held responsible as his act was
merely a condition and the driver's act superseded it as the responsible cause of the injury. It is
clear that "but for" the defendant's negligence the collision would not have occurred, but this is not
27
sufficient to impose responsibility upon the defendant. The driver had independent, volitional
control of the situation and became the responsible cause of the accident.30
30
Orton v. Pennsylvania Railroad Company, (C. C. A. 6th Cir. July 3, 1925) 7 F. (2d) 36.
SELECTED ESSAYS ON THE LAW OF TORTS (1924) 652; Smith, Legal Cause in Actions of Tort (1911) 25
HARv. L. REv. 106.
32
James Angell McLaughlin, Proximate Cause, 39 Harvard L.R., 149-199 (December 1925)
33
Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March
1932)
34
Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March
1932)
35
SELECTED ESSAYS ON THE LAW OF TORTS (1924) 652; Smith, Legal Cause IN Actions OF Tort, 25 Harv.
L. Rev. 106 (1911)
31
Three specific objections are raised, against the use of probability or foreseeability as a test of
proximate or legal cause, by Professor Smith. He objects first, that as the law stands, the defendant
is liable for probable consequences but he is not always free from liability for improbable
consequences; second, the test of probability should not be used to determine negligence and then
used again to determine legal cause; and third, "the causative effect of a defendant's tortious
conduct is not increased by the fact that a particular result was foreseeable." But these objections
have further been countered by other legal scholars.36
36
See Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March
1932)
37
Smith, Legal Cause in Actions of Tort, 25 HARv. L. REv. 106 (1911)
38
Smith, Legal Cause in Actions of Tort, 25 HARv. L. REv. 106 (1911)
39
Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March
1932)
A second criticism has been made to substantial factor as a test on the ground that it assumes that
"nothing affects legal cause except the degree in which an act is a substantial factor in producing
a result; "40 that the real test of legal cause is justice rather than its materiality or substantiality as
a cause. However, Carpenter believes that Professor Smith is correct in confining legal or
proximate cause to a cause which is a substantial factor in producing the result. Proximate cause
is a delimitation of defendant's liability to those consequences for which the defendant's conduct
is materially responsible. There are several reasons for the rule and justice is one of them.41
40
10
It is sometimes assumed by courts that if the defendant merely facilitated the causing of the damage
by furnishing a condition, as opposed to directly causing the damage, he will not be held liable. It
has been shown that it is not possible to make a distinction between antecedents of a damage, as
to whether they are cause or condition that will aid in solving the problems of causation.46 The
objection to this test is that in many situations, it is an impossible task to make the classification
of antecedents into facilitating-conditions and causes.
46
JAGGARD, HANDBOOK OF THE LAW OF TORTS (1895) 64; POLLOCK, TORTS (8TH ED. 1908) 464,
NOTE L.
47
Beale, Proximate Consequences, 33 HARV. L. REV. 633, 658 (1920)
48
Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March
1932)
49
Edgerton, Legal Cause, 72 U. OF PA. L. REV. 211, 343 (1924)
50
James Angell McLaughlin, Proximate Cause, 39 Harvard L.R., 149-199 (December 1925)
11
and simplified system of causation yet. However, Carpenter critiques it51, saying that he greatly
overworks "probability" and would seem clearly out of accord with the cases in refusing to treat
stimulated voluntary action any differently than he does independent intervening forces, in other
words according to him only those voluntary actions which are appreciably probable produce
proximate consequences.
51
Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March
1932)
52
Kansas City, Memphis & Birmingham R. R. Co. v. Lackey (1896) 114 Ala. 152, 21 So. 444.
53
James Angell McLaughlin, Proximate Cause, 39 Harvard L.R., 149-199 (December 1925)
12
On one hand, it is desirable to have the law even of proximate cause in some measure left to the
discretion of the bench and bar, so that we may have body of laws made by practical application
by professionals, and not altogether left to other men, unaided and untrained in this respect. The
problem with a universal test, according to legal scholars, is that several of these tests tend to
render judgement in favour of the plaintiff. That is why it is essential to maintain a certain degree
of discretion as well, wherein, if a court is convinced that extraordinary features, of time and space
for instance, require judgment for defendant in a given case, it can and will hold accordingly.
But on the other hand, it is also desirable that the result of cases be predictable as much as possible,
so that frivolous suits may not be brought, and well-founded claims may be settled outside of the
courtroom, and without wasting the courts precious time. A settled practice and a set, universal
test of proximate cause in any jurisdiction must facilitate the operation of a legal instinct as
distinguished from a capricious one, and must add to the orderly and satisfactory settlement of
controversies in and out of court.54 A general plan of proximate cause should be regarded as a
working hypothesis; but if all courts approached cases according to a universal rule or test, the law
would have a degree of predictability and certainty that it does not currently have.
If the expressed policy of the court is that the result must be foreseeable, reasonable results can be
reached in certain cases by a loose interpretation as to the degree of definiteness in the
foreseeability required. This involves an elasticity in the conception of foreseeability which leaves
the legal system without any guide but its own conscience. Legal scholars admit that a degree of
flexibility in the application of the Doctrine of Proximity cannot be avoided.
Chapter 5: Conclusion
The first test discussed is Lord Bacons maxim In jure non remota causa sed proxima
spectatur under which the act taking place nearest in time/space to the injury is taken as the cause.
But this test is ambiguous and misleading, and in some cases, the act closest in time is taken as the
legal cause, but it is not so. Such decisions hamper justice. The Last Wrongdoer rule, which says
that the last human wrongdoer is liable and all the antecedent actors should be exempted from
54
James Angell McLaughlin, Proximate Cause, 39 Harvard L.R., 149-199 (December 1925)
13
liability, has also been criticised. Sometimes, the act of last human wrongdoer may not be the
proximate cause, and in other cases, the act of one of the earlier persons may be the one actually
causing damage. The third is the but for test which would often impose liability for acts very
remote in time or space and where the defendant's act was a most insignificant and incidental
factor. It has been criticized on the grounds that it is more appropriate to determine cause in fact,
and while it is useful for exempting from liability, it is too broad to accurately fix liability.
The fourth test the researcher has studied is the Probable Consequence Test which says that the
defendant is liable for probable consequences, and that he is free from liability for improbable
consequences. But the objections are that neither is the first proposition universally true, nor can
improbability be entirely rejected as a test of remoteness. Next is Professor Smiths Substantial
Factor test, which states that the defendant's tort must have been a substantial factor in producing
the damage complained of. But this test has been criticised as worthless, with no practical
applicability. It is merely a descriptive statement, explaining the relationship between the act of
the defendant and the damage caused to the plaintiff as a consequence thereof. Professor
Edgertons Justly Attachable Cause test is an improvement over the Substantial Factor test, as it
allows for both, qualitative and quantitative factors. Seventhly, Cause Distinguished from a
Condition means that it is sometimes assumed by courts that if the defendant merely facilitated
the causing of the damage by furnishing a condition, as opposed to directly causing the damage,
he will not be held liable. But in many situations, it is impossible classify the acts into conditions
and causes. The Extraordinary Result test says that if the consequence of the defendants act
was extraordinary, then he is to be exempted from liability. But its criticism lies in the fact that the
word extraordinary is used in the sense of Act of God in its legal meaning, and the term is
ambiguous.
Professor Beale's System of Proximate Causation of active risk which requires for proximity of
causation that defendant's wrongful act, or failure to act, create or continue a force which
"remained active itself or created another force which remained active until it directly caused the
result; or have created a new active risk of being acted upon by the active force that caused the
result,"55 is an attempt to state the most definite and workable rule for measuring the substantial
55
Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259, 245
(March 1932)
14
character of the defendant's cause. Professor McLaughlin has further built on this test by
identifying two key types of proximate causations: simple active force causation; and causation by
independent active forces or through intervening voluntary actions the probability of whose
intervention was considerably increased by the defendant's act. According to several legal scholars
and professionals, it is the most viable candidate to be moulded into a universal test. In the
researchers opinion, this system of proximate causation eliminates most of the criticisms of all
the tests studied above. It is much more clear and workable, and does not leave too much to judicial
discretion; it has the potential to act as a steady guide.
It may be concluded what while values like justice are important guiding considerations which
play a fundamental role in all decisions of the courts, these values have not yet been shaped into
definite rules of law. Values are criticised because they leave several aspects of the law to judicial
discretion and lending the entire trial process a normative and subjective character. While there
are options that can be moulded into effective universal tests, none of them have materialised as
of now.
15
Bibliography
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3. Richard Goldberg, Perspectives on Causation
4. Jaggard, Handbook Of The Law Of Torts, 1895
5. Pollock, Torts, 8th Edition, 1908
6. Selected Essays On The Law Of Torts, 1924
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9. Robert E. Keeton, Legal Cause in the Law of Torts, Harvard Law Review, Vol. 77, No. 3
(Jan., 1964), pp. 595-600, Stable URL: http://www.jstor.org/stable/1339048
10. Richard W. Wright, Causation in Tort Law, 73, CAL. L. REV. 1735 (1985), Available at:
http://scholarship.law.berkley.edu/californialawreview/vol73/iss6/2
11. Norris J. Burke, Rules of Legal Cause in Negligence Case, 15 California Law Review, 118 (November 1926)
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