I think we basically agree and the difference is largely semantic. I suppose I have in mind ideas of causal responsibility that also underlie the cases on negligent intervening acts/doctrine of novus actus. In a case where the defendant negligently creates a danger and the claimant then recklessly exposes themselves to that danger and suffers damage the courts sometimes say that the defendant is not liable because the sole legal cause of the damage was the claimant’s reckless conduct. Same with negligent third party interveners. It would be strange if similar logic didn’t apply to deliberate third party interventions.

 

And the problem if you drop causation as an explanatory concept here is that you then have to rely on some other concept or on mere assertion. In your case it seems to be an idea of ‘doing’, but what does that mean? Why was it ‘their doing’ in the case of the child but not in the case of the psychopath? You say because in one case the person who was the immediate cause of the harm was not responsible (for their physical action) and in the other they were. I agree. Traditionally the law has packaged those ideas in the language of causation and I think that is a perfectly sensible thing to do. But as I say I think this boils down to semantics in the end.

 

All best

 

Donal

 

 

I am not sure whether the language of “causation” captures what we’re trying to say, not least because the term is slippery. Some use it to mean “responsibility”. Still others expand it to cover mere “contribution.”

 

In all of these cases, but for the defendant’s action the result would not have occurred. In all of them, the defendant had responsibility, in some sense, for what occurred.

 

The language of wrongs and injury seems to me to capture the idea more clearly.

 

If you’re shot by a five your old child with a gun, what was the wrong you suffered? You were shot. But the five year old wasn’t the one responsible for that, the person who gave him the gun was. It was their doing.

 

 

The language of ‘injury’ here seems obscure to me, but if we focus not on the action but on the end result that grounds the claim (ie the damage, physical ‘injury’, etc) then I think this boils down to a causation argument (the defendant did not commit a wrong because in some sense the defendant didn’t cause the damage). I agree with that. And I think it explains why the defendant is a wrongdoer if they give the gun to a young child, who is not responsible for their actions. But it does need to be explained, even if it is difficult.

 

All best

 

Donal

 

 

 

 

“Presumably those Rob puts in the Donoghue/MacPherson camp think that there are two wrongs in some cases of this kind even though there was no assumption of responsibility, and it is not self-evident (to me anyway) why that is not the case.”

 

If we think (as some do) that the wrong/tort is constituted by exposing others to the risk of injury, then the social host, the gun seller and McKinsey all committed a wrong. As did the driver, shooter and Saudi government.

 

If we think the wrong/tort is constituted by the injury (being run over, being shot etc) that gives us a different answer, as the social host, gun seller and McKinsey didn’t do those things. Rather, they did something that caused someone else to do those things.

 

On either view, there may be another kind of wrong constituted by the breach of an assumed duty to take care.

 

Whether torts are wrongs at all (many academics at least purport to think that torts can’t be defined or are liability formulas or something else) and what those wrongs are constituted by are Big Difficult Questions.