See below.

-----Original Message-----
From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]
Sent: Monday, September 26, 2011 9:32 AM
To: Wright, Richard; 'Sandy Steel'
Cc: obligations@uwo.ca
Subject: RE: ODG: Blaming the Scots for the common law's factual
causation follies

Richard states
"Because the defendant is trying to escape liability, despite tortious
causation of the harm, within the normal scope of liability, merely
because
of the fortuity that it would have happened anyway due to nontortious
causes. While I support that limitation on legal responsibility given my
understanding of the principles of justice, I think the defendant should
not
be allowed to do so based on such fortuity unless it is at least 'clear
and
convincing' that it would have happened anyway, rather than being a mere
probability or minimal belief that it would have happened anyway. "


(i) Why (as a matter of principle) do you think this?


RWW: See quoted text above and Parts I and II of my article, The Grounds
and Extent of Legal Responsibility. Tort liability is liability for
having adversely affected others' equal external freedom through an
unjust interaction. Such an adverse effect has not occurred, no matter
how bad the defendant's conduct and regardless of actual causation and
foreseeability etc., if the plaintiff would have suffered the same
injury/harm/loss anyway due to non-legally-responsible causes. The
adverse impact on the plaintiff's external equal freedom has occurred if
the injury would have occurred anyway due only to other tortious (or
otherwise legally responsible) conditions, which share legal
responsibility and liability if they also were actual (duplicative)
causes rather than preempted conditions. In either case, the plaintiff
has suffered a setback to his interests, caused by the defendant's
tortious conduct, for which the defendant luckily escapes liability only
due to the fortuity that the injury would have happened anyway due to
other (duplicative or preempted) non-legally-responsible conditions. In
such situations, it seems to me that the plaintiff should be denied
recovery for the injury tortiously caused by the defendant only if the
defendant clearly proves that such injury would have happened anyway due
to non-legally-responsible conditions. Some (including the first and
second Restatements, but not--after considerable
behind-the-scenes-debate--the third Restatement) have gone further and
claimed that the defendant should be liable regardless, even if the
injury would have happened anyway due to non-legally-responsible
conditions.

(ii) Do you think this principle should apply outside of the law of
torts?
So should a claim for breach of contract for loss which would probably
have
been suffered regardless of any breach, be recoverable unless the party
in
breach can show clearly and convincingly that it would have happened
anyway?
Should the same principle apply in the criminal law?

RWW: I haven't given this much thought, but I think it should also apply
in contract law. Criminal law is a different matter. Criminal
liability is for a nondiscrete wrong caused to the public as a whole by
a wilful breach of the public peace and order, which it seems to me
exists even if the injury (e.g., death) would have occurred anyway as a
result of some non-legally-responsible condition: e.g., a fatal
lightning strike simultaneous with the fatal shot or axe blow.

(iii) "Scope of responsibility" is surely better than "scope of
liability".
Limitation periods, for example, also fix the scope of liability. We are
asking what the defendant is responsible for, and that will determine
the
scope of his liability (as will a number of other unrelated things).
Liability is not a synonym for responsibility.

RWW: I agree completely that "scope of responsibility" is better than
"scope of liability", but I tossed in the latter term in deference to
its use in the third Restatement. (I avoided "proximate cause"). My
own preferred term is "attributable responsibility".

I still remain of the view if X would have happened anyway, regardless
of Y,
Y did not cause X, and that it is at very best counter-intuitive to
describe
this as a concern of 'scope of liability' rather than causation.

RWW: And you still remain pretty much alone with this view, given
situations involving causal overdetermination.