The Tests of Legal Cause in

Tortious Acts

Law of Torts- I

Submitted by:

Submitted to:

Vrinda Vinayak

Mr. Prem Chand

Roll No. 76LLB14

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

Chapter 2: Need to Limit Liability to Proximate Cause

Chapter 3: Tests of Proximate Cause

Chapter 4: Need for a Universal Test

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:

Law of Torts, by R.K. Bangia

The Law of Torts, 10th Edition, by Ramaswamy Iyer

Perspectives on Causation, Edited by Richard Goldberg

2.2 Articles/Journals:

Legal Cause in Actions of Tort, by Jeremiah Smith

Published by: The Harvard Law Review Association
Article DOI: 10.2307/1324390
Stable URL: http://www.jstor.org/stable/1324390

Legal Cause, by Henry W. Edgerton

University of Pennsylvania Law Review and American Law Register
Vol. 72, No.4 (May, 1924), pp. 343-375
Published by: University of Pennsylvania Law
Article Stable URL: http://www.jstor.org/stable/3314220

Legal Cause in the Law of Torts, by Robert E. Keeton

Published by: Harvard Law Review
Vol. 77, No. 3 (Jan., 1964), pp. 595-600
Article Stable URL: http://www.jstor.org/stable/1339048

Causation in Tort Law, by Richard W. Wright

73, CAL. L. REV. 1735 (1985)
Available at: http://scholarship.law.berkley.edu/californialawreview/vol73/iss6/2

2.3 A Few Relevant Indian Cases:

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

3. Statement of Research Problem:

I wish to critically analyze the various tests employed by the court system to determine legal
cause, the case laws which helped establish these tests, and how they have evolved ever since.
4. Objectives:

To enquire into the study of Test of Proximity.

To study why liability of the defendant is restricted to consequences brought about

by proximate causes only.

To present an analysis of the tests employed to determine legal cause in a tortious

act.

To see if there is a Test of Proximity that can be applied universally.

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.

Case Name and Citation

DeLong v. Miller & Lux (1907) 151 Cal. 227, 90 Pac. 925

Lawrence v. Southern Pacific Co. (1922) 189 Cal. 434, 208 Pac. 966.

Smith v. London & S. W. R. Co., 6 L. R. C. P. 14, 20 (1870)

Belding v. Johnson (1890) 86 Ga. 177, 12 S. E. 304.

Dudgeon v. Penbroke (1874) LRQB 581; 2AC284

Hogan v. Bentick West Hartley Collieries Ltd. (1949) 1 All ER 588

Robinson v. The Post Office (1974) 2 All ER 737

Wireland v. Cyril Lord Carpenters Ltd (1969) 3 All ER 1006

Barnett v. Chelsea and Kensington Hospital Management Committee(1969)1 QB 428

10

Ganga Sugar Corpn Ltd & ors v. Sukhbir Singh AIR 1974 All 113

11

Mahogany v. Ward (1889) 16 R. I. 479, 17 Atl. 860

12

Lynch v. Knight (1861) 9 H. L. Cas. 577

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

Gilman v. Noyes, (1876) 57 N. H. 627, 631

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

Gilman v. Noyes, (1876) 57 N. H. 627, 631

19

Barnett v. Chelsea and Kensington Hospital Management Committee (1969) 1 QB

428
Ganga Sugar Corpn Ltd & ors v. Sukhbir Singh AIR 1974 All 113

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

Belding v. Johnson (1890) 86 Ga. 177, 12 S. E. 304.

WIGMORE, CASES ON TORTS, VOL. I, 870
9
Dudgeon v Penbroke (1874) LRQB 581; 2AC284
10
Hogan v. Bentick West Hartley Collieries Ltd. (1949) 1 All ER 588
11
RAMAMSWAMY IYER, THE LAW OF TORTS (2007)
12
Robinson v. The Post Office (1974) 2 All ER 737
13
Wireland v. Cyril Lord Carpenters Ltd (1969) 3 All ER 1006
8

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

Chapter 2: Need to Limit Liability to Proximate Cause

Professor Joseph H. Beale suggests that it is to expedite the work and reduce the burden of
courts trying casesThe consequences of an act may be innumerable; to trace them would
require infinite time and patience. Here, as in all affairs of life, it is necessary to reach a result
which will secure the greatest amount of consideration which is compatible with an equal
consideration to all other interests.17
Our courts can give only its fair share of all the available time to trace the consequences of any
act, considering the other cases which are waiting for its attention. Charles E. Carpenter, in his
article Workable Rules for Determining Proximate Cause, provides the following example:

14

Barnett v. Chelsea and Kensington Hospital Management Committee (1969) 1 QB 428

Ganga Sugar Corpn Ltd & ors v. Sukhbir Singh AIR 1974 All 113
16
James Angell McLaughlin, Proximate Cause, 39 Harvard L.R., 149-199(December 1925)
17
Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March
1932)
15

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.

Chapter 3: Tests of Proximate Cause

A. In jure non remota causa sed proxima spectatur
Lord Bacon's maxim, "In jure non remota causa sed proxima spectatur," is the most frequently
quoted test, and is often found in legal literature. It literally means that the antecedent nearest in
space or time regarded as the proximate cause. This test can be very misleading; in many cases, an
act which is not nearest in space or time to the consequence in question has been taken as a
proximate cause. Smith comments on the efficacy of the test saying that, "the use of the maxim as
a universal solvent of difficulties has been productive of infinite confusion and error."20 The
meaning of Lord Bacon's maxim is ambiguous. If the maxim is taken to mean that in determining
liability for a loss, responsibility of the defendant for the final or nearest cause must be established,
it is not confusing. Once the final or immediate cause of the consequences for which it is sought
to hold the defendant responsible is ascertained then our whole attention may be directed to
answering the question of the responsibility of the defendant for that final cause.21

B. The Last Wrongdoer Rule

19

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

C. Causa sine qua non- But for Test

This is usually referred to as the "but for rule. But for the defendant's act the consequence in
question would not have occurred. This test 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 would
frequently require the imposition of liability in cases where it would be absurd to do so. 25 To
illustrate: "Suppose D wounds P, which causes P to go to a hospital for treatment, which causes a
nurse, Q, to administer to P, which causes P to make love to Q, which causes Q's husband R, from
nervousness and irritation, to go on a reckless automobile ride in the course of which he runs over
P as P is leaving the hospital."26 This rule would require D to be held liable for the injury P received
in being run over.

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

Gilman v. Noyes, (1876) 57 N. H. 627, 631

Norris J. Burke, Rules of Legal Cause in Negligence Case, 15 California Law Review, 1-18 (November 1926)
29
(C. C. A. 6th Cir. July 3, 1925) 7 F. (2d) 36.
28

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

D. The Probable Consequence Test

This test consists of two distinct dimensions, as demonstrated by Professor Smith31. One is that
the defendant is liable for probable consequences, and the other that he is free from liability for
improbable consequences. As to the first, it may be said that almost every legal writer agrees that
the defendant's wrong is the proximate or legal cause of all probable consequences. As to the
second, most writers have accepted it as demonstrated that the improbability of consequences must
be rejected entirely as a test of what is not proximate.32
Charles E. Carpenter in his article Workable Rules for Determining Proximate Cause,33 argues that
neither is the first proposition that all probable consequences are proximate universally true, nor
can improbability be entirely rejected as a test of remoteness. Courts generally hold that a probable
consequence is not proximate if it results immediately from an unforeseeable, intervening,
independent cause without which it would not have occurred, or, in many instances, even if it
results from a deliberate or voluntary dependent act of a human being. Also, the courts reach just
and desirable results in a greater portion of the cases in which they hold consequences not to be
proximate by applying the test of improbability.
As probability is an important aid though not a conclusive criterion in determining the existence
of proximity of causation, so improbability is likewise useful but not conclusive in determining
that proximity does not exist.34 It seems that in a considerable portion of the cases where causes
intervene after the defendant acted improbable consequences are not proximate.35

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

E. Substantial Factor Test

Professor Smith proposes as a test of legal or proximate cause that "The defendant's tort must have
been a substantial factor in producing the damage complained of."37
This test has been criticized and is regarded to be practically useless as a workable rule to
determine legal cause in difficult cases, and the truth of its worthlessness is exemplified in Smith's
application of the test to the case where a carrier negligently delays goods in transit, and after the
goods are sent on they are destroyed by an act of God, as for example, by lightning. Smith reaches
the result that the carrier should be liable since it was a substantial factor in causing the result. This
is a decided minority view and against the recent marked trend of the decisions.38 The defendant
did not increase the chances of the intervention of such cause and without it the result would not
have happened. The result which the courts reach, therefore, seems clearly correct.
The truth seems to be this, that whether defendant's act is a substantial factor is not a test or a rule
of law which may be worked or applied by the courts but is merely the descriptive statement of
the essential nature of the relationship which must be found to exist between the defendant's wrong
and the consequence for which it is sought to hold him liable.39 It is a synonym for proximate cause
with helpful connotations. According to Carpenter, more specific rules of law must be laid down
to make it workable.

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

F. Justly Attachable Cause Test

Justly attachable cause as the test of legal cause is the proposal of Professor Edgerton. 42 The
advantages claimed for this over the substantial factor test is that it allows for qualitative as well
as quantitative considerations.
But Charles Carpenter objects to it, arguing that in reality it affords no test in a large portion of the
cases. In fact, it is not intended to be a definite guide because Professor Edgerton himself believes
that definite rules as to causation are not only impossible but undesirable.43
But justice is not in itself a good test for any rule, for in a large portion of the cases it is never clear
whether one or the other result is just and in such cases the test leaves us wholly at sea, whereas
rules may be perfected which will not work injustice, but will serve to make clear to persons their
legal rights, reduce litigation and expedite the trial of cases.44 When it is clear that the application
of a rule in particular instances works injustice that is persuasive ground for modifying the rule to
avoid such consequence, and where there is a separable group of such instances courts usually
develop a modification of the rule but do not do away with the rule entirely. 45

G. Cause Distinguished from a Condition

40

Edgerton, Legal Cause, 72 U. oF PA. L. REV. 211, 343 (1924)

Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March
1932)
42
Edgerton, Legal Cause, 72 U. oF PA. L. REV. 211, 343 (1924)
43
Edgerton, Legal Cause, 72 U. oF PA. L. REV. 211, 343 (1924)
44
Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 California L.R., 229-259 (March
1932)
45
James Angell McLaughlin, Proximate Cause, 39 Harvard L.R., 149-199 (December 1925)
41

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.

H. Beale's System of Causation47

Professor Beale's system of proximate causation of active risk which would require 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,"48 is an attempt to state a more definite and workable rule for measuring the substantial
character of the defendant's cause.
His article consists of several useful suggestions, but its mechanistic terminology is better fitted to
the study of sciences than to that of human relations, and when applied to the latter is often vague
and perplexing. Professor Edgerton has shown the ambiguity of the words "direct" and "indirect",
"active" and "passive", and that frequently either nothing turns upon this quality of the force or it
brings a wrong result.49
Professor McLaughlin has made a noteworthy effort to rehabilitate Beale's system50 and expressed
it 'in terms used by the courts. He has, however, in reality set up a system of his own. He says "We
have arrived at the conclusion that there are two types of proximate causation: (1) simple active
force causation; and (2) causation by independent active forces or through intervening voluntary
actions the probability of whose intervention was appreciably increased by the defendant's act."
According to several legal scholars, Professor McLaughlin has come up with the most workable

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.

I. Extraordinary Result Test

One of the most recent tests laid down is the Extraordinary Result Test, which says: Where a
result after the event appears extraordinary it is not a proximate consequence. Carpenter
comments on it saying that the word extraordinary is one which is not used in the law beyond
reference to acts of God and similar phenomena. If it constitutes any delimitation it is most
confusing and uncertain. Suppose we try to apply this test to a case. A, an engineer, negligently
drives his train toward a crossing over the defendant's track while the defendant's train is passing
over the crossing. Defendant's engineer after clearing the crossing suddenly backs his train and it
collides with A's engine. This does not appear to be an extra- ordinary result looking at it after the
event so that A's negligence would be treated as the proximate cause under this test but was the
court not correct in holding in that case that A's negligence was not a proximate cause of the
collision since there intervened an independent, unforeseeable act of a third person.52

Chapter 4: Need for a Definite Test

Professor Edgerton's thesis is that definite rules are impossible. But according to legal scholars,
definiteness itself is an indefinite, relative term. What degree of certainty is possible under the
principles proposed, and what is the use of striving for certainty?53 From analysis of the above
tests, it emerges that the legal system is in need of a common, universal test of legal cause for
tortious acts. But this issue is contentious as well, and conflicting viewpoints present themselves.

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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1. R.K. Bangia, Law of Torts, 2011 Edition
2. Ramaswamy Iyer, The Law of Torts, 10th Edition (2007)
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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1. Smith, Legal Cause in Actions of Tort (1911) 25 HARV. L. REV. 103
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3. Torts. Negligence. Proximate Cause Source: Columbia Law Review, Vol. 33, No. 3 (Mar.,
1933), pp. 546-547 Published by: Columbia Law Review Association, Inc. Stable URL:
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Accessed: 21/09/2014 22:20
5. Beale, Proximate Consequences, 33 Harv. L. Rev. 633, 658 (1920)
6. Edgerton, Legal Cause, 72 U. Of Pa. L. Rev. 211, 343 (1924)
7. Jeremiah Smith, Legal Cause in Actions of Tort, The Harvard Law Review Association,
Stable URL: http://www.jstor.org/stable/1324390
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16