Dear Richard;

My signature block is added automatically by my email system – but I shall remove it in future in this correspondence! (And among ourselves I might add that if my Uni bureaucracy had its way, the block would be even longer!)

I may be wrong here, but I always assumed that NESS could be applied in the sort of cases you mention as follows. If there are three separate events (A,B and C) which acting together caused the harm, and any two would have been sufficient together but none would have been sufficient on its own, then can we not say that A, for example, is a cause because A is a necessary element of the set (A + B + X) (X being whatever additional circumstances were needed) which would have been sufficient; and it matters not that A is also a necessary element of the set (A+C+X) which would also have been sufficient? Nor does it matter that there is a different set (B+C+X) which is also sufficient, to which A does not belong. (I have already acknowledged that NESS is an exception to “but for” causation, in my view the only exception.)

And since I think NESS is an important concept, I would continue to maintain that the word “necessary” in NSW CLA s 5D(1)(a) could cover such an example.

Happy to be corrected if I have misunderstood.

Regards

Neil 

From: Richard Wright <rwright@kentlaw.iit.edu>
Date: Wednesday, 8 April 2020 at 11:21 am
To: Neil Foster <neil.foster@newcastle.edu.au>
Cc: Robert Stevens <robert.stevens@law.ox.ac.uk>, Harold Luntz <hluntz@gmail.com>, "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Re: language of causation

 

Thanks, again, Neil.

 

I have again eliminated your excessive signature in my reply. Are such lengthy signatures really useful or needed on this discussion list,

where we generally are quite familiar with each other?

 

What about situations in which the defendant's wrongful conduct was neither necessary nor independently sufficient, e.g., three shots, fires, floods,

doses of poison or toxin, etc., when only two were necessary and none were independently sufficient?

 

- Richard

 

On Tue, Apr 7, 2020 at 7:42 PM Neil Foster <neil.foster@newcastle.edu.au> wrote:

Dear Richard (and colleagues);

Thanks very much for your collation of these comments, very helpful. I wouldn’t care to speak for Rob ☺  but as far as my view is concerned, I am happy to say that while the “but-for” test should always be the usual test for establishing causation, cases of over-determined causation (two independent simultaneous events either of which would have been sufficient to cause the occurrence) should be decided in accordance with the NESS test.

Just to add to the Australian support for the NESS test, I might mention Strong v Woolworths Limited (2012) 285 ALR 420; [2012] HCA 5 where the High Court said at [28]:

“the limitations of the "but for" analysis of factual causation include cases in which there is more than one sufficient condition for the occurrence of the plaintiff's injury.  At common law, each sufficient condition may be treated as an independent cause of the plaintiff's injury” (footnote: Amaca Pty Ltd v Booth (2011) 86 ALJR 172 at 187C [70]; 283 ALR 461 at 480; March v E & M H Stramare Pty Limited (1991) 171 CLR 506 at 534 per McHugh J.  See also Glanville Williams, "Notes of Cases:  The Two Negligent Servants", (1954) 17 Modern Law Review 66 at 71)

 

For Australian colleagues (others can turn away now!) there is another interesting question about how to fit the NESS cases into the statutory amendments that have been made. In NSW the Civil Liability Act 2002 s 5D seems to have explicitly adopted some of the concepts of Jane Stapleton in explicitly distinguishing “factual” liability from “scope”:

 

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability).

 

In my view the phrase “a necessary condition” in para 5D(1)(a) would also allow the NESS analysis to be used to establish “factual causation” (as, in those cases where there are two independent causes which both would have caused harm, to satisfy the NESS test both an alleged cause would have to be “necessary”). True, the High Court has said in Strong v Woolworths Limited [2012] HCA 5; (2012) 285 ALR 420 at [18]: “[D]etermination of factual causation under s 5D(1)(a) is a statutory statement of the "but for" test of causation”; but I think the comments about this simply replicating the “but for” test were simply not addressing the possible application of the NESS test.

 

Regards

Neil

 

From: Richard Wright <rwright@kentlaw.iit.edu>
Date: Wednesday, 8 April 2020 at 8:30 am
To: Robert Stevens <robert.stevens@law.ox.ac.uk>, Harold Luntz <hluntz@gmail.com>, Neil Foster <neil.foster@newcastle.edu.au>
Cc: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Re: language of causation

 

Dear Colleagues,

 

I hope and pray that you and yours remain as well and happy as is possible during this difficult time. I and my family and friends remain well so far.

 

In this message, I have attempted to include, organize and edit (almost entirely by removing excessive "signature" information) all prior messages in this thread and the prior thread initiated by Neil with subject heading "a brief mention of causation in tort in USSC". During the combining/editing process a day or more ago (depending on your time zone), I unfortunately accidentally deleted a draft message upon which I had spent very many hours, after which I gave up for a day or more. I have now tried to recall and present the main points in this message.

 

I appreciate Neil's and Harold's posts. Additional Australian judicial opinions recognizing causation, based on the NESS test, despite lack of but-for causation, include Amaca Pty Ltd v. Booth, [2011] 246 CLR 36, ¶¶ 48, 53, 70, and Allianz Australia Ltd v. Sim [2012] NSWCA 68, ¶¶ 37–49, 133–145 (Austl.). There are also a number of recent cases in the USA which have treated an unnecessary and insufficient cause as a "cause", including Paroline v. United States, 572 U.S. 434, 134 S. Ct. 1710 (2014), which relied upon the NESS test but (erroneously) described it as a "legal fiction".

 

I am pleased to learn that both Neil and Rob, who previously were, to my knowledge, the primary common-law advocates of the but-for test as the exclusive test of causation (Jane Stapleton switches back and forth between modified but-for, NESS, and unelaborated causal contribution), apparently have now abandoned their prior attempts to defend the but-for test as the sole test for cause-in-fact as a necessary condition for legal responsibility.

 

However, I am disappointed to learn that Rob describes those (including me) who oppose his restrictive and implausible "but-for" definition of causation as having supposedly adopted a syllogism in which the major premise is that proof of causation is sufficient for legal responsibility. I have always insisted upon a clear distinction between factual causation, on the one hand, and legal/proximate causation, scope of liability, or attributable responsibility (my preferred term), on the other hand. Factual causation (between the wrongful aspect of the defendant's conduct and the plaintiff's legally cognisable injury) is a necessary but not sufficient condition for legal responsibility and ultimate liability, which also depends on the absence of any limitation on attributable responsibility and any complete defense.

 

Moreover, Rob's syllogism is logically faulty. After its major premise, which (erroneously) assumes that causation is sufficient for legal responsibility, it should state as a minor premise that there was causation in this instance, thereby leading to a logical conclusion that there is legal responsibility. Instead, he switches the minor premise and the conclusion.

 

Rob now acknowledges that (non-but-for) "contribution" is sufficient to satisfy the cause-in-fact requirement for legal responsibility, but he nevertheless apparently insists that judges, juries, lawyers and everyone else should always interpret "causation" as requiring a strongly necessary (but-for/sine qua non) condition. His argument is based on the assumption, unfortunately also assumed by the current US Supreme Court (subject to explicit exceptions) when interpreting statutes that use language such as "caused by" or "resulted from", that ordinary people generally interpret "causation" as requiring but-for causation.

 

This unsupported assumption is contradicted by usual reactions to overdetermined causation situations. If there are two independently sufficient fires, shots, doses of poison, etc., how many other than Rob would deny that each fire, shot, dose of poison, etc., "caused" or was "a cause" of the consequent injury, even if they would not describe it as "the cause"? If one fire, shot, dose of poison preempted the other fire, shot, dose, how many would deny (as required by the but-for test), that the preemptive fire, shot, dose "caused" the injury, and indeed was "the cause" as well as "a cause"?

 

Rob attempts to make his point by use of a voting example involving thousands of individually unnecessary and insufficient votes. (I remain puzzled by his mathematics. He states that the winner had 25,000 votes and the closest competitor had 10,000 votes, but that the required majority supposedly was only 15,000 votes, later changed to 10,001 votes.) But was not each vote nevertheless "a cause" of the winner's election? If there had been only three voters, with a majority required for election, and two or three voted for the winner, would Rob continue to insist that none of them "caused" or was "a cause of" the winner's election? How many of you would agree?

 

Rob attempts to avoid the counterargument that, if none of them individually were a cause, then the result is a non-caused miracle. He follows Mackie and other defenders of the but-for test in attempting to apply the but-for test to aggregated individual contributions. However, as I and others have often previously noted, this argument is deficient for several reasons. First, as a purely factual matter, we are seeking to assess the individual's causal contribution. Second, individual legal responsibility is based on individual causal contribution. Third, employing the aggregate but-for test opens the door to allowing preempted and even totally irrelevant conditions to be included as causes.

 

I had assumed that attempts to define or interpret legal terms, especially factual or legal/proximate causation, based on ordinary language usage were wisely abandoned after the abject and ultimately acknowledged failure by Hart and Honore to do so, as discussed in my initial articles on causation and elaborated in The Nightmare and the Noble Dream: Hart and Honore on Causation and Responsibility (https://papers.ssrn.com/abstract=1918529; https://works.bepress.com/richard_wright/33/). See also the useful paper by Kevin Tobia, Legal Concepts and Legal Expertise (https://papers.ssrn.com/abstract=3536564), in which he warns against such attempts, focusing especially on the different legal versus common understandings of intent in common law jurisdictions. Even wider differences exist in civil law jurisdictions, given their treating "dolus eventualis" as intent for legal purposes.

 

In any event, Rob's (and the USSC's) assumption that ordinary people only recognize but-for conditions as "causes" is refuted by a recent empirical study conducted by James A. Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation, 94 Indiana Law Journal 957 (2019), https://www.repository.law.indiana.edu/ilj/vol94/iss3/4. Each survey participant was presented with a vignette based on an actual Supreme Court case that did not include any “necessity” or “sufficiency” language but in which the described “focal” condition at issue was either (1) necessary and sufficient, (2) necessary and insufficient, (3) unnecessary and sufficient, or (4) unnecessary and insufficient but nevertheless contributed (as a NESS condition). “Necessary” meant strong necessity. “Sufficient” meant independent strong sufficiency. They were asked to answer whether the applicable statutory standard (“caused by” or “resulted from”) and each of several common alternative standards (“but for” phrasing, “substantial factor”, “contributing factor”, and “sole cause”) were satisfied. The study did not include preemptive causation situations.

 

While over 85% of the study participants correctly recognized that the but-for causal language was not satisfied when the focal condition was unnecessary, nevertheless 74% stated that the statutory language was satisfied when the focal condition was unnecessary and sixty percent stated that it was satisfied even when the focal condition was neither necessary nor sufficient (but nevertheless contributed). As I would have hoped, since the focal condition in all of the vignettes was a NESS contributing condition, the participants almost always stated that the focal condition was a "contributing factor".  

 

I do not disagree that, ideally, legal language should conform with ordinary persons' understanding of various terms, especially when they are asked to act or adjudicate in conformance with the legal language. It may well be that a vast amount of statutory and judicial statements regarding the cause-in-fact requirement for legal responsibility should be modified to refer to "contribution" rather than "causation." But, unless and until that is done, judges should interpret "causation" in a much broader fashion, consistent with "contribution", as is already true for most people as demonstrated by Macleod's empirical study. To fail to do so would lead to gross denials of justice, as I hope Rob would agree, in every case involving causal overdetermination, and such cases occur very often. The result in the Comcast case that triggered this discussion, as well as many other cases, might well be justifiable based on a lack of attributable responsibility, due to the fact that the plaintiff's injury clearly would have occurred anyway due to non-legally-responsible conditions. But that issue should be clearly distinguished by the courts and us legal academics from the factual causation issue.

 

Best regards to all,

Richard

 

--------------------------------------------

 

On Sat, Apr 4, 2020 at 1:16 AM Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:

• the two hunters firing simultaneously at the victim and each causing wounds sufficient to kill even if the other had not fired;
• the two fires started separately but combining to destroy the house when one alone would have done so;
• the group of people pushing the car over the cliff when there were more than enough to achieve this purpose;
• the factory polluting the stream which was already polluted by others;
• the company directors making up the necessary quorum and voting in favour of the company acting unlawfully where the absence of any one of them would have made no difference.

I accept that in all of these cases each individual defendant may both have committed a tort, and be liable for any loss following that is not too remote. It doesn't follow that each hunter caused the death, each fired caused the house to burn down etc. The point of my voting example is to try to show the, imo, ridiculous position attempts to argue that each of these individually causes the event in question leads to. The only difference with my voting example is that there we have thousands of actors, not just two or three.

 

The syllogism writers in this area have been guilty of is, I think, something like this

1. If a person's action causes an event, they are responsible for it.
2. Here are cases where the law rightly treats the defendant's actions as responsible for the outcome
3. Therefore these cases are all cases when an action causes an outcome.

And the result is an attempt to re-define "factual" causation as meaning something nobody outside the law would think it does.

 

Each individual in these cases contributed to the outcome, in the same way as the voter for the successful candidate. That contribution suffices to hold each of them responsible in law, in the same way as each individual voter is outside it. 

 

It follows that I consider those who drafted the Australian Civil Liabilty Statutes to be guilty of precisely the syllogism above. They define "causation" to mean "contribution" in some cases to overcome the problem that responsibility doesn't always depend on causation. 

 

The positive law in any jurisdiction can stipulate that black means white if it likes, but that doesn't make it true as a matter of fact, and doesn't mean that sat here in another jurisdiction I have to accept it. 

---

From: Harold Luntz <hluntz@gmail.com>
Sent: 04 April 2020 03:26
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Obligations list <obligations@uwo.ca>
Subject: Re: language of causation

Dear colleagues,

Robert and I agree that the election of the candidate in his electorate is not "a mysterious un-caused event". There are other well-known examples of the attribution of responsibility where the outcome would have been the same without the act of the wrongdoer:

• the two hunters firing simultaneously at the victim and each causing wounds sufficient to kill even if the other had not fired;
• the two fires started separately but combining to destroy the house when one alone would have done so;
• the group of people pushing the car over the cliff when there were more than enough to achieve this purpose;
• the factory polluting the stream which was already polluted by others;
• the company directors making up the necessary quorum and voting in favour of the company acting unlawfully where the absence of any one of them would have made no difference.

None of these is "an uncaused event". They all satisfy statutory language, like that in the section under which Swan was convicted, that the act of the individual "caused" the outcome. "As a matter of the English language", it is therefore not "ridiculous" to say that one person's act "caused" the outcome, though the outcome would have been the same without the act in question. Edelman J was therefore wrong in the earlier judgment when he said (my emphasis): “Something which makes no difference to an outcome does not ‘cause’ the outcome. Causation requires that the event is necessary for the outcome." The contradiction with upholding the conviction in Swan remains.

The Civil Liability statutes in Australia, under the heading "Causation", state that a determination that negligence or breach of duty "caused" the harm comprises, as its first element, "factual causation". This is ordinarily proved by showing that the breach of duty was a necessary condition of the occurrence of the harm (as the courts have said, by the application of the familiar "but-for" test). The statutes go on to allow the courts to determine "in an exceptional case, in accordance with established principles", that factual causation is satisfied when it cannot be proved that the breach of duty was a necessary condition of the occurrence of the harm. For a court to determine in these exceptional cases that the wrongdoer's act factually caused the harm when the outcome would have been the same without the act does not "do violence to the English language".

Let me end on a note of agreement with Robert. He is undoubtedly correct in saying that "factual relations of causing or contributing to an event may be necessary to establish responsibility, but insufficient". In Swan, it would have been possible for a court to hold that, even though it had been proved that the accused's act was necessary for the victim's death, responsibility should not be attributed to the accused because of the extraordinary chain of later events.

I also agree with Robert in hoping all our colleagues keep well in the present extraordinary circumstances.

Best wishes,

Harold.

On 4/04/2020 3:20 am, Robert Stevens wrote:

"It would be artificial to say that legal responsibility was being attributed to the wrongdoer without also saying that the wrongdoer had caused the death."

I do not agree, and think there is no inconsistency between the two statements in the different judgments by Edelman J.

He is right, I think, to distinguish in Swan between contribution and causation.

An example I like is that of voting. Say I vote for the successful candidate in a by-election here in East Oxford where I am currently confined. The successful candidate gets 25,000, the closest challenger 10,000, a majority of 15,000.

Did my vote *cause* the election of the winner?

As a matter of the English language, it seems (at least to me) to be ridiculous to argue (as some have) that I did so. I made no difference to the outcome.

Did my vote contribute to the victory? Yes of course. It is, if we like that language, a necesary element of a (number of) sufficient sets bringing about that result.

If my individual vote did not cause the result, no other individual vote caused the result. Does that make it a mysterious un-caused event?

Of course not. We can say of any of the actual real world set of 15,000 votes that they caused the victory (remove them and the victory disappears).

Alternatively, we could say that 10,001 votes caused the victory, as that is the number necessary for a majority.

But saying, as some acadmics urge us to do, that any individual vote caused the result seems to me to do violence to English.

Does that mean that my vote is not responsible for the result? I don't think (as so many writers seem to have assumed) that in order for an outcome to be my responsibility that it is necesssary to show that it was caused by my action. Rather it suffices to show that my action contributed to it. Each individual voter who voted for the successful candidate is to some degree responsible for her victory (as is everyone who did not vote for an opponent).

All causes contribute, not all contributions cause. Everything that contributes is in part responsible.

I gave a lecture in Canada years ago saying this. I had a nasty cold and so am even more nasal than usual.

 https://www.youtube.com/watch?v=LL6re4bl8N4

So, I agree with Edelman J. It is important that we distinguish between causation and contribution (Swan). It is legitimate for the law to treat those who merely contribute as responsible (ACCC v Valve), just as we do outside it. 

The mistake is to think that being responsible for something necessarily entails that you caused it.

It follows that I do not think talking of "causal contribution" helpful, as it seeks to elide the distinction, that is reflected in English usage, between causing something and contributing to it. I also think the US Restatement's language of "scope of liability" is a retrogade step, and worse than the older terminology it replaced. "Liability" is not synonymous with "responsibility". Liability means (roughly, in our context) being subject to the power of another to be sued. Lots of things limit that (eg the expiry of a limitation period). What is really meant by "scope of liability" is "scope of responsibility." The factual relations of causing or contributing to an event may be necessary to establish responsibility, but insufficient.

Keep safe Harold, and everyone else.

best

Rob

---------- Forwarded message ---------
From: Neil Foster <neil.foster@newcastle.edu.au>
Date: Fri, Apr 3, 2020 at 7:18 PM
Subject: Re: language of causation
To: Robert Stevens <robert.stevens@law.ox.ac.uk>, Harold Luntz <hluntz@gmail.com>, Obligations list <obligations@uwo.ca>

 

Dear Colleagues;

Thank you Harold, for noting these comments on causation in the criminal context. I did see Swan but pressure of other things (including switching to online teaching!) meant that I didn’t get an opportunity to comment here. I think I was also warned off by the possibility that causation in criminal matters seems to be treated somewhat differently from that in tort- see eg para [24]: “the requirement that the act of the accused cause the death charged required the jury to be satisfied that the act of the accused was "a substantial or significant cause of death" or a "sufficiently substantial" cause.’ That is clearly not the tort rule, where legal liability can be attached so long as the action of the defendant was one of a set of causes which together were necessary for the outcome, so long as the defendant’s action was not de minimis (ie it does not have to be “substantial”).

I won’t comment on Rob’s interesting distinctions between “contribution” and “causation” yet, I need to reflect on these a bit more. But for the moment it seems to me that the comments in Swan at [25] reflect the correct view of the law of tort as well as criminal law.

“[T]here are some cases where an accused will be legally responsible for a death even if the act of the accused was not, by itself, necessary for the victim's death but was instead "one of the conditions which were jointly necessary to produce the event"” seems to me to accurately reflect the doctrine that an act can be regarded as a cause so long as it has made a “material contribution” to the set of events which was necessary for the outcome- see eg Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10:

 

[45]   The law's recognition that concurrent and successive tortious acts may each be a cause of a plaintiff's loss or damage is reflected in the proposition that a plaintiff must establish that his or her loss or damage is "caused or materially contributed to" by a defendant's wrongful conduct. It is enough for liability that a wrongdoer's conduct be one cause. The relevant inquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss.

 

Also Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at 493 [106] where McHugh J noted:

“If the defendant's breach has 'materially contributed' to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage.”

 

We have had long discussions here before which I don’t want to resurrect about whether “material contribution” is an exception to “but for” causation. In my view it is not, but those who wish my detailed reasons can ask me off-line and I will endeavour to provide the answer.

 

The next remark in Swan at [25]: “An exceptional example where an accused might be held legally responsible for the death of another even if the act of the accused was not by itself necessary for the victim's death is where a victim "dies from the combined effects of ... two wounds", either of which would have been sufficient for death but only one of which was inflicted by the accused” seems to me to be an application of Richard’s NESS theory, which is becoming well accepted in Australia decisions. If the act of the defendant is a necessary element in a set of events sufficient to bring about the outcome, then it can be said to have “caused” the outcome, even if there is some other set of events which would also have caused the same outcome at the same time.

 

All the best in these trying times!

Regards

Neil

 

From: Harold Luntz <hluntz@gmail.com>
Sent: 03 April 2020 14:18
To: Obligations list <obligations@uwo.ca>
Subject: language of causation

The 3 new UK Supreme Court decisions will no doubt keep lists members busy for some time. However, may I revert briefly to the discussion on causation that preceded those decisions? Like Richard Wright, I admire Neil Foster’s ability to keep up with the law in multiple jurisdictions. On this occasion, he might have drawn attention to a passage in a recent joint judgment of the ultimate appellate court in his and my home jurisdiction, Swan v The Queen [2020] HCA 11 (18 March 2020), which demonstrates that in some circumstances it is appropriate to use causal language when attributing legal responsibility to a wrongdoer even though the outcome would have been the same if the wrongdoer had not acted.

In an avowedly obiter statement in Australian Competition and Consumer Commission v Valve Corporation (No 7) [2016] FCA 1553 (23 December 2016) at [25]-[26], Edelman J had stressed that in his view it was essential to separate the concepts and “labels” of contribution and causation. He said there: “Something which makes no difference to an outcome does not ‘cause’ the outcome. Causation requires that the event is necessary for the outcome.’ This is contradicted by paragraph [25] of the joint judgment in Swan, in which Edelman J himself participated. In Swan, the accused was charged with murder, no less. A 1900 NSW statute defined the circumstances in which an act of the accused, “causing the death charged” (emphasis added), amounted to murder and not some other form of homicide. The accused attacked the victim on 15 April 2013 in circumstances covered by the statute. The victim died on 10 December 2013 after having spent some time in an aged care institution, fallen out of bed and deliberately not been subjected to surgery which could have been expected to be successful. Upholding the conviction, the High Court of Australia held that there was evidence on which a jury could find the accused guilty of murder. It was accepted in the High Court, that there was evidence on which the jury could find that the Crown, as it was required to do, had proved beyond reasonable doubt that the death was not caused by another illness from which the deceased was suffering. Examining the evidence in great detail, the High Court also held that there was evidence on which the jury could hold that the Crown had proved beyond reasonable doubt the decision not to operate was taken because of the effect on the victim’s quality of life by the attack on 15 April and not for some other reason.

In this context, the court referred (at [25]), in my opinion correctly though unnecessarily, to “some cases where an accused will be legally responsible for a death even if the act of the accused was not, by itself, necessary for the victim's death but was instead "one of the conditions which were jointly necessary to produce the event". It noted that an “exceptional example where an accused might be held legally responsible for the death of another even if the act of the accused was not by itself necessary for the victim's death is where a victim ‘dies from the combined effects of ... two wounds’, either of which would have been sufficient for death but only one of which was inflicted by the accused.”

The example given by the High Court applies, of course, also in tort. It would be artificial to say that legal responsibility was being attributed to the wrongdoer without also saying that the wrongdoer had caused the death.

-----------------------

From: Wright, Richard <rwright@kentlaw.iit.edu>
Date: Tue, Mar 31, 2020 at 6:47 PM
Subject: Re: ODG- a brief mention of causation in tort in USSC
To: Neil Foster <neil.foster@newcastle.edu.au>
Cc: obligations@uwo.ca <obligations@uwo.ca>

 

Thanks very much, Neil. I am envious of how you and some others are able to keep up on the case law in so many jurisdictions, while

I can't even keep up with the case law in the USA but rather rely on various lists and blogs, including this one.

 

I haven't read this case yet. If it is based on the rationale that the plaintiff must lose despite proof of racial discrimination's being a contributing factor, because the same result would have occurred independent of any wrongful (racial or otherwise) conduct, then I would agree that the result is legally correct under what I have called the "no worse off" limitation on attributable responsibility (scope of liability, legal causation), despite proof of actual causation. See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=438640, http://scholarship.kentlaw.iit.edu/fac_schol/714.

 

On the other hand, if it is based on a supposed lack of actual causation (causal contribution) because 'but-for' causation does/might not exist, 

or a supposed lack of legal responsibility even though it was a significant factor in a decision that would not have occurred in the absence of any

wrongful conduct or motivation, I believe it is wrong and contrary to  prior USSC precedent (e.g., the Paroline case), as well as High Court

precedent in Australia.

 

On Tue, Mar 31, 2020 at 6:43 PM Lionel Smith, Prof. <lionel.smith@mcgill.ca> wrote:

Thanks Neil. Personally I am not sure I would characterize that as sensible.  [Irrelevant text deleted].

 

Lionel 

 

From: Neil Foster <neil.foster@newcastle.edu.au>
Date: Tuesday, March 31, 2020 at 19:06
To: ODG <obligations@uwo.ca>
Subject: ODG- a brief mention of causation in tort in USSC

 

Dear Colleagues;

Just for something completely different- those collecting quotes on causation in tort law might at first be interested in a US Supreme Court decision (unanimous as to the main principle) that opens in this way:

 

Few legal principles are better established than the rule

requiring a plaintiff to establish causation. In the law of

torts, this usually means a plaintiff must first plead and

then prove that its injury would not have occurred “but for”

the defendant’s unlawful conduct.

 

The decision is COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN AMERICAN-OWNED MEDIA 743 Fed. Appx. 106 (March 23, 2020) and can be found here: https://www.law.cornell.edu/supct/pdf/18-1171.pdf . Sadly for common law torts lawyers, however, this introductory statement is only a preface to a detailed discussion of the elements of a claim for racial discrimination under 42 U. S. C. §1981, which guarantees “[a]ll persons . . . the same right . . . to make and enforce contracts . . .as is enjoyed by white citizens.” But the decision is that this wording means that a plaintiff must show that race was a “but for” cause of the decision to deny a contract, not merely a “motivating factor”. Seems a sensible decision.

Regards

Neil