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Fact and Law in the Causal Inquiry
Alex Broadbent This is a post-peer-review but pre-copy-edited version of a paper due to be published in the journal Legal Theory , 2009, 15(3). Abstract This paper takes it as a premise that a distinction between matters of fact and of law is important in the causal inquiry. But it argues that separating factual and legal causation as different elements of liability is not the best way to implement the fact/law distinction. It is partly a legal question what counts as a cause-in-fact; and certain liability- limiting doctrines under the umbrella of “legal causation” depend on the application of factual-causal concepts. The contrastive account of factual causation proposed in this paper improves matters. This account more clearly distinguishes matters of fact from matters of law within the cause-in-fact inquiry. It also extends the scope of cause-in-fact to answer some questions currently answered by certain doctrines of legal causation – doctrines which, it is argued, are more naturally seen as applications of our ordinary causal concept than as non-causal liability- limiting devices.
1. The Fact/Law Distinction
There are good reasons for legal process to distinguish questions of fact from questions of law: for example, clarity of reasoning, justice, and common sense. The latter suggests that, if a question before a court is one of fact, it is to be answered by evidence, and sound inferences from the evidence. Whereas if it is one of law, it is to be answered by statute, precedent, and policy, to the satisfaction of an expert in those things – which usually means a judge. It may not always be possible to entirely separate questions of fact from questions of law. Many “objective” legal tests mix the questions in quite complex ways. For example, reasonable foreseeability is a legal doctrine which aims to capture an objective fact about what a reasonable person would foresee; yet a lawyer will be better able to predict what a court will consider reasonably foreseeable than the man on the Clapham omnibus. For another example, what courts call findings of fact are governed by admissibility and relevance of evidence, as well as standards of proof and inference, which are all matters of law. Nevertheless, the distinction between law and fact remains of great importance in certain contexts. It is central to the deployment of juries and to the jurisdiction of appellate courts. And it is fundamental to the proof of any given proposition. There is no point trying to prove that the gun belonged to Bloggs by citing authority, and no point producing fingerprints from the gun if you are trying to prove that title passes by a contract for the sale of goods which is voidable for misrepresentation. The present essay is premised on the view that the distinction between matters of fact and matters of law is important in legal practice at least sometimes , even if a universal and sharp theoretical distinction is hard to defend.
Conversely, other writers trivialize the causal inquiry by linking it to the actor’s conduct as a whole… 1 On the picture Wright goes on to advocate, the causal inquiry concerns facts, and facts only: …the causal inquiry is a factual, empirical inquiry that can be – and almost always is – kept distinct from the policy issues in tort adjudication.^2 If the first part of the proposed distinction is correct, then presumably the causal inquiry can be distinguished from legal issues more generally; precedent and statute are presumably no more relevant than policy to settling “factual, empirical” questions. Wright’s view, then, is that there is a sharp distinction between matters of fact and matters of law at least when it comes to the causal inquiry ; further, that this distinction is important; and finally, that it ought to be (and in practice usually is) implemented by a sharp distinction between factual causation and other, non-causal aspects of liability. This paper explores a different line, accepting , with Wright, that a strong fact/law distinction is important in the causal inquiry, but denying that it should be implemented by a corresponding distinction between elements of liability. I will argue (Sections 2 and 3) that law cannot be kept out of the factual causation element of liability, and conversely (Section 4) that properly causal considerations underlie some 1 Richard Wright, Causation in Tort Law , 73 CALIFORNIA LAW REVIEW 1735 - 1828, 1740 (1985). (^2) Id. at 1803.
of the doctrines of legal causation. Accordingly, the account of factual causation proposed (in Section 5) explicitly gives the law a place in determining what counts as cause in fact. To a Wright-sympathiser, this strategy might sound a bit like appeasement, giving ground to evil forces in the hope that we can control them. But if the negative argument of the paper is correct, then the evil forces are already here: whether the element of liability called factual causation is satisfied is not purely a “factual, empirical” matter. It is in part a matter of law, and calling it factual causation does not change that. Moreover, there seems to be no way to purge factual causation of its legal parts. So it turns out that the only way to preserve the distinction between fact and law in the causal inquiry is to attempt to distinguish the legal from the strictly factual parts of that element of liability misleadingly called “factual causation”, and in so doing, admit that it contains legal parts. The view that the distinction between fact and law is important in the causal inquiry may be challenged, of course. This paper is not meant to answer such a challenge. Rather, it sets out a way of implementing the distinction. In particular I shall focus on a context where others have already considered the distinction important and tried to implement it – namely, in the causal inquiry in tort law. For convenience I will restrict my attention to the tort of negligence in English law, though I see no principled reason why the arguments could not be generalised to the causal inquiry in other areas of English law and to some other jurisdictions, notably the American.
2. Factual Causation as an Element of Liability
provide a satisfactory account of causation itself. Richard Fumerton and Ken Kress have provided a thorough critique of Wright’s NESS analysis, and they point out that the failure of Wright’s account is no surprise: “Philosophers have labored long and hard on the question of how to analyze causation, with a striking lack of success”. 4 I think the lesson, which Fumerton and Kress do not really explore, is that a defender of the fact/law distinction ought not to adopt Wright’s heroic strategy. It would be better to seek a more direct way of distinguishing the fact/law distinction in the causal inquiry, without shouldering the Herculean philosophical burden of saying exactly what the causal facts are. My second doubt about Wright’s approach concerns the central idea that an element of legal liability can consist purely in a causal fact. On closer inspection, making sense of this claim proves tricky. There seem to be some fundamental difficulties with the idea that there can be a purely factual-causal element of liability. The basic trouble is that the obstacles to a good philosophical account of causation also turn out to be obstacles to developing a universally applicable legal test for causation. The law gets round the obstacles by applying different tests in different circumstances, along with a healthy dose of common sense. While this may be a perfectly acceptable procedure in legal practice, it undermines purism about the factual causation element of liability, because the law retains a central role in determining which test is to be applied. This second worry is therefore linked to the first: it arises because we do not have an unproblematic analysis of, or test for, causation, meaning that the law has to step in to make up for the deficiencies. So however much we might feel inclined to insist that 4 Richard Fumerton & Ken Kress, Causation and the law: preemption, lawful sufficiency and causal sufficiency , 64 LAW AND CONTEMPORARY PROBLEMS 83 - 105, 102 (2001).
causal facts do not depend on our human laws, satisfaction of the cause-in-fact element of legal liability nevertheless does depend on our laws: and in this sense, it is never a purely factual matter. This problem is readily illustrated in cases of causal redundancy. These are cases where a cause is redundant with respect to an effect, such that the effect would have occurred even if the cause had not. 5 Causal redundancy thwarts the most widely used test for causation, the but-for test.^6 Assassin A shoots at the Queen, and the Queen dies. Common sense suggests that there is a causal nexus between Assassin A’s shot, and the Queen’s death: a bullet travelled from Assassin A’s gun and entered the Queen’s heart, causing it to stop beating. In short, common sense says that Assassin A killed the Queen. Unfortunately, the but-for test disagrees. But for Assassin A’s shot, would the Queen have died? To prove causation, the but-for test requires a negative answer; yet we cannot give a negative answer, because Assassin B is also a crack shot and was taking aim from behind another grassy knoll at just the moment that Assassin A shot. It is worth making a small detour to anticipate a common response to this problem. If Assassin B had shot the Queen, then she would have died a little later, the bullet would have come at a slightly different angle, and so forth. Can these details not be employed to salvage a sophisticated version of the but-for test? Despite some heroic 5 David Lewis, Causation , 70 JOURNAL OF PHILOSOPHY 556 —567 (1973); DAVID LEWIS, PHILOSOPHICAL PAPERS, VOLUME II (1986) esp. Postscript E to "Causation". 6 Cork v Kirby Maclean Ltd [1952] 2 All ER 402; Barnett v Kensington and Chelsea Hospital [1969] 1 QB 428. Many other authorities could be cited.
in which the approaches to situations presenting conceptual or evidential difficulties for the proof of causation ought to be applied. 11 The existence of such an authority (as well as its content) suggests that it is a matter of law which test ought to be used to establish factual causation. If that is so, then, as Wex Malone argues, 12 satisfaction of that element of liability cannot be said to consist in a matter of pure fact. (This is so even if the test selected in a given circumstance tests for a matter of pure fact.) For the facts could be the same, and the law make a different recommendation about which test to use, yielding a different result. Again, that this is possible is borne out by a study of case law in this area, which shows the courts changing their minds – or at least evolving in their thinking – about how to treat cases.^13 This is perfectly normal for a legal system based on precedent. But it shows that the legal question of whether a certain defendant’s breach is a cause in fact can be answered differently, due to a difference in law but without disturbing facts. Thus it is hard to see how so-called factual causation, qua element of liability, can be purely a question of fact. Wright does, of course, address Malone’s line of argument. Yet it is hard to see what possible defence Wright has, in the absence of an adequate account of factual causation. As long as a fully adequate universal test for factual causation eludes us, and that is likely to be a long time yet, it will remain for courts to decide which of a number of tests for factual causation to apply – or, indeed, to apply no test at all, or to devise a new test. And as long as the courts choose between tests in this way, the 11 In particular addressing the tension between Wilsher v Essex Area Health Authority [1988] 1 All ER 871 and McGhee v National Coal Board [1973] 1 WLR 1 (HL). (^12) Wex Malone, Ruminations on Cause-In-Fact , 9 STANFORD LAW REVIEW 60 - 99 (1956). 13 Again this is well illustrated by the tension between Wilsher v Essex Area Health Authority [1988] 1 All ER 871 and McGhee v National Coal Board [1973] 1 WLR 1 (HL), subsequently resolved by Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32.
outcome of the inquiry is partly determined by the law, through the decisions of the courts.
3. Is Factual Causation Fundamental? One way to reply to the foregoing argument is as follows. Granted, satisfaction of the element of liability called “factual causation” is partly a matter of law. Nevertheless, there is a real distinction between the objective facts about what causes what, and various judgements we might make about which of those facts is relevant in a given case. This is the fundamental reason for a distinction between factual causation and legal causation, as different elements of liability (the latter perhaps being an umbrella including more than one distinct element, reflecting different sorts of relevance considerations). In this section and the next I will argue that this, more fundamental basis for the standard implementation of the fact/law distinction in the causal inquiry also fails. This section will present difficulties for identifying a stable underlying notion of factual causation, shorn of relevance considerations; and the next will concern the inadequacy of analysing those relevance considerations as non-causal, purely legal liability limiters, under the umbrella of legal causation. It is clear that causal judgements, whether in legal contexts, explanatory contexts, or elsewhere, almost always involve relevance considerations. In the broadest possible sense, the Big Bang might be considered a cause of everything that happens: it features in the causal history of every event we know of. Yet the Big Bang is rarely mentioned when we discuss the causes of particular events. We might admit that the
parallel of the distinction in law between factual and legal causation. Just because we can’t exactly say what this fundamental notion of causation amounts to, the argument goes, it hardly follows that we should abandon it altogether. Likewise, just because we cannot devise a legal test for factual causation, it hardly follows that we should abandon any factual element in the causal inquiry. It only shows that we need to be conscious of the limitations of our legal tests. However, there are two obstacles to legal theory simply adopting the assertive stance of the philosophers. First, as H.L.A. Hart and Tony Honoré argue, the law needs to answer to common sense in a way which philosophers – rightly or wrongly – seem not to feel they need to. The concept of causation which the law uses and applies is derived from common sense, and ultimately answers to common sense. This “shared concept” claim is extremely plausible,^17 provided it is not understood as the obviously false claim that the causal judgements made by common sense are exactly those made by law, and vice versa. The claim, rather, is that common sense and legal judgements about causation apply what is broadly the same concept, even if the legal application of that concept becomes technical. Another way to put the point is that, whatever the technicalities, the subject remains recognisable as pertaining to what we would ordinarily call causation. To that extent, the law and common sense share a concept of causation, and anyone who denies it must provide a better explanation of the curious fact that the law uses the ordinary word “cause”. That causal judgements in law answer to common sense presents a special difficulty for legal theorists who wish to cite this orthodox philosophical view of causation in 17 Peter Lipton, Causation Outside the Law , in JURISPRUDENCE: CAMBRIDGE ESSAYS 127 —148 (H. Gross & T. R Harrison eds., 1992).
support of a distinct factual-causal element of liability. For our ordinary causal judgements simply do not have a corresponding distinct factual element, which might form the basis of our legal judgements about what counts as a cause in fact. Extremely commonly, we pick out certain causes from among other causally relevant events. For example, I cite the late train as the cause of my arriving late at a meeting. I do not mention the presence of oxygen, nor my birth, even though but for either I would not have arrived late at the meeting. Naturally, we could interpret my claim that the late train caused my late arrival to mean that the late train was the most salient or relevant cause, yet not the only one. But if that is what I meant, it is strange that that is not what I said. The same goes for every singular causal statement ever made, since every one of them fails to mention all the but-fors of the effect in question (through ignorance if nothing else). We could insist that every causal claim of the form “ X is the cause of Y ” is strictly speaking false, and means merely that X is an especially salient cause of Y for present purposes. But this interpretation is imposed on, not suggested by, common sense and talk. A related point is that taking a purely factual notion of causation as conceptually prior is misguided, with regard to our ordinary use of causal concepts. Normally, when we say of an event that it is the cause, we regard it as the cause from the start, and we may then come to learn more about the other causally relevant events.^18 The procedure advocated by the purist about factual causation in law is the opposite way round, however: first identifying causally relevant events, and then asking whether they amount to causes for present, legal purposes. This reversal of the order in which (^18) H.L.A. HART & A. HONORÉ, CAUSATION IN THE LAW 22 - 25 (Second ed. 1985).
To illustrate the latter point, and to provide a more positive argument for my case that a distinct notion of factual causation is untenable, let us run through a simple imaginary example. Jane is walking home from the pub, extremely drunk. She is walking on the pavement of a public highway, putting her in breach of a duty imposed by the laws of her land, which are like the laws of England except for the simplifying assumption that being excessively drunk on the pavement automatically puts you in breach of a duty to other road users. A car driven by Richard swerves off the road and hits Jane. She is injured, and Richard’s car is damaged. Clearly, common sense holds that both forms of damage are Richard’s fault, and not Jane’s; and we would naturally express this by saying that it was Richard’s breach of duty, and not Jane’s, which caused the damage. However, both of their breaches satisfy the but-for test with respect to the injury. But for Richard’s swerve, there would have been no damage; but for Jane’s drunken walking on the pavement, there would have been no damage. This appears to provide Richard with a claim, in respect of the damage to the front of his car, and a counter claim of contributory negligence, in respect of Jane’s claim against him for her injuries. Yet surely, neither Richard’s claim nor his attempt to secure a contribution from Jane ought to succeed: Jane’s drunkenness had nothing to do with either form of damage. PHILOSOPHY 57 - 68 (1926); Lipton, supra note___; Peter Menzies, Causation in Context , in RUSSELL'S REPUBLIC REVISITED: CAUSATION, PHYSICS, AND THE CONSTITUTION OF REALITY 191 - 223 (Huw Price & Richard Corry eds., 2007); Alex Broadbent, The Difference Between Cause and Condition , in press PROCEEDINGS OF THE ARISTOTELIAN SOCIETY (2008).
An argument might be attempted on just this basis – that Jane’s drunkenness played no part in the damage. Of course that is true, but the question is whether it can be captured by a legal notion of factual causation. At least on the but-for test, it cannot. We might try to argue that but for Jane’s drunkenness, the damage might still have occurred, because Jane could still have been walking, but sober. This is not a principled argument, however: we might just as well argue that but for the walking, the injury might still have occurred, because Jane could still have been drunk, but in the pub. The breach of duty consisted in doing both at once; and the but-for test gives a different result depending which we apply it to. If, as I am assuming, we wish to find that Jane’s being drunk on the highway is not a cause of her own injury and the damage to Richard’s car, the proponent of the but-for test must hope that Jane’s breach is not a cause in law. No doubt the court would find accordingly, but three points of dissatisfaction are worth noting. First, the doctrine of novus actus interveniens cannot readily be applied to the case. It is hard to see Richard’s swerve as a novus actus, breaking the chain of causation; after all, it occurred at the instant of the damage, and was indeed an essential part of the cause of the damage. More generally, the distinction between acts of third parties which follow naturally and therefore fail to be novus acta is suspect, as was noted in the forceful dissenting opinion of Blackstone J in the venerable case of Scott v Shepherd. In that case, a lighted squib was thrown onto a market stall and then hurriedly thrown on by several successive panicking stall-holders before exploding in the plaintiff’s face. The majority held that the stall-holders throwing on the lighted squib in those circumstances did not amount to a novus acta: the mischievous person who lit the squib in the first place caused the damage despite the intervening acts. Dissenting,
cause in fact clearly contradicts this common sense intuition; it does not answer, as it ought, to common sense. The role of common sense in this argument is not to require that every causal and common sense judgement agree. Rather, the point is that insistence on a legal doctrine of factual causation, to the extent that it comes at the expense of the common sense notion of causation, comes also at the expense of deserving the name “causation”. Divorced of common sense, factual causation becomes a purely legal doctrine.
4. Legal causation In the previous section, I suggested reasons why it might be desirable to allow what we might broadly call relevance considerations into the factual causation element of liability. In this section I make the complementary argument, that these relevance considerations are not satisfactorily handled as purely legal restrictions on the causal facts. The basic reason is the same: that considerations of causal relevance are integral to our causal judgements, meaning neither makes sense when they are separated. Legal causation might be characterised broadly as a class of legal doctrines which limit liability once a causal nexus has been established. But this characterisation is vague; and worse, it is not sufficient. The law has many mechanisms for limiting liability among causes in fact. In tort law, all the other stages of establishing liability could be seen as satisfying this definition: the imposition of a duty, the question of whether the duty was breached, and the question of whether the claimant suffered damage. A defendant who causes harm but who does not owe a duty of care, or who
owes a duty but meets the standard of care, is not liable for the damage she thereby causes. A defendant who owes and breaches a duty and causes some effect on the claimant that fails to be a recognised form of damage is not liable. It will not do, then, to characterise legal causation as a set of legal doctrines limiting liability among causes in fact; such a characterisation would make the entire question of liability for negligence apart from cause in fact a question of legal causation. Perhaps a more hopeful approach would be to specify the sorts of limitations which legal causation seeks to impose on liability among causes in fact. Legal causation arguably provides an entry point for policy considerations, and probably also for straightforwardly moral considerations which have little to do with policy and more to do with the rights and wrongs of a particular case. On this approach, all of our judgements of causal relevance would be akin to policy or moral considerations. That is, they would all be explained as the operation of certain other principles, which are not strictly causal in character. For an example of how this might work, take the doctrine of remoteness of damage, which is governed by reasonable foreseeability.^26 It is easy to identify a moral doctrine that remoteness of damage might be seen as instantiating. Consider the doctrine that ought implies can: there is no moral obligation on an agent to do something which the agent cannot do. And in order to be able avoid causing damage (other than by luck), you must be able to foresee it. Therefore an agent cannot be held morally responsible for unforeseeable damage (with some refinements to handle the crucial qualifier “reasonably” – itself a normative term). In this fashion, one aspect of (^26) Ibid.
