Ambiguous Case in Fact

Ambiguous Cause-in-Fact and Structured
Causation: A Multi-Jurisdictional Approach

ERIK S. KNUTSEN
SUMMARY
I.
INTRODUCTION.......................................................................................................... 250
II.
THE LANDSCAPE OF CAUSE-IN-FACT DOCTRINE ....................................................... 251

A. The Evolution of Cause-in-Fact Doctrine ......................................................... 252
1. The But For Test..................................................................................... 252
2. The Substantial Factor or Material Contribution to Injury Test.......... 253
B. Ambiguous Cause-in-Fact Cases ...................................................................... 254
C. Modifications to Traditional Cause-in-Fact Tests ............................................ 256
1. The Reversal Approach: Reversing the Burden of Proof of
Causation to the Defendant ........................................................................ 256
2. The Increased Risk Approach: Proving the Defendant Materially
Increased the Risk of Injury ....................................................................... 257
3. The Inference Approach: Inferring Causation from the Facts of the
Case............................................................................................................ 258
D. The Importance of Ambiguous Cause-in-Fact Cases: Hints of Policy
and Theory ........................................................................................................ 258
1. Policy Drives Modifications to Traditional Cause-in-Fact Principles ....... 258
2. The Inherent Indeterminacy of Cause-in-Fact Cases ................................. 260
3. Theory Behind the Policy of Cause-in-Fact............................................... 261
III.
MODIFICATIONS TO TRADITIONAL CAUSE-IN-FACT DOCTRINE ................................. 262

A. The Reversal Approach ..................................................................................... 262
1. The Genesis of the Reversal Approach ...................................................... 263
2. Criticisms of the Reversal Approach ......................................................... 266
B. The Increased Risk Approach ........................................................................... 267
1. The Genesis of the Increased Risk Approach ............................................ 268
a. The Increased RiskIncreased Injury Dichotomy in Britain
and Canada......................................................................................... 268
b. The Increased Risk Approach in the United States............................. 271
2. Criticisms of the Increased Risk Approach................................................ 272
3. Alternatives to the Increased Risk Approach............................................. 273
a. Probabilistic Evidence, Efficiency, and Increased Risk...................... 273
b. Increased Risk of Injury as a Compensable Injury ............................. 275
C. The Inference Approach .................................................................................... 277
Erik S. Knutsen, LL.M., Harvard Law School; LL.B., Osgoode Hall Law School; H.B.A., Lakehead
University. Former Visiting Assistant Professor, Florida State University College of Law. The author wishes to
thank Professor Jon Hanson of Harvard Law School for helpful comments and guidance in the early stages of this
article and for continued mentorship, especially in the area of tort law. The author also wishes to thank Professor
Paul C. Weiler, Henry J. Friendly Professor of Harvard Law School, for instilling both a critical approach to the
torts system as well as the recognition of the value of cross-jurisdictional, comparative approaches.
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2.
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Res Ipsa Loquitur and the Inference Approach.......................................... 277

The Genesis of the Inference Approach ..................................................... 278
Criticisms of the Inference Approach......................................................... 280
IV.
A NEW APPROACH TO AMBIGUOUS CAUSE-IN-FACT CASES ..................................... 282

A. Structured Causation......................................................................................... 283
B. Reversing the Burden of Proof of Causation to Force Information .................. 283
C. Materially Increasing the Risk of Injury as Proof of Cause-in-Fact................. 284
V.
EVALUATING STRUCTURED CAUSATION ................................................................... 284

A. Structured Causation Compatible with Corrective Justice View ...................... 284
B. Structured Causation Compatible with Efficiency Theory View ....................... 286
VI.
CONCLUSION ............................................................................................................. 288
I.
INTRODUCTION
It has been repeatedly asserted by tort scholars that, unlike proximate cause inquiries,
an inquiry into cause-in-fact is a straightforward, factual matter devoid of policy.1 That is a
myth.2 Over the past one hundred years, courts in the United States, Canada, and Britain
have wrestled with doctrinal solutions for solving difficult torts cases turning on cause-infact. Courts have traditionally applied the but for, or sine qua non, test of cause-in-fact
when faced with determining cause in a torts action. Where the but for test fails, courts
have reached for the substantial factor, or material contribution to injury, approach to
divine what role a defendant had in causing injury to a plaintiff. The majority of cause-infact questions that come before a court can be solved using either one of these two
approaches.
However, there exists a pattern of torts cases where courts have found both the but
for test and substantial factor test unsatisfactory. These cases are unique in that they tend
to exhibit a peculiar set of facts, which makes determining a breach of the standard of care
possible but determining cause-in-fact nearly impossible. For example, a doctors
negligence in prescribing the incorrect treatment for an already ill patient may be a possible
cause of the subsequent death of the patient. However, the death may also have been
caused by the already existing illnessa non-culpable, possible cause. Often there is no
way to pinpoint the actual cause of injury. All that is known is that the defendants
negligence increased the risk that the plaintiffs injury might occur. A fact finder is faced
with the difficult decision of whether or not to award compensation to a plaintiff who has
been exposed to a risk of injury created by a defendants negligence but who may possibly
have been injured by a cause not related to the defendants negligence. Cause-in-fact is
ambiguous.
1. See, e.g., Richard W. Wright, Causation in Tort Law, 73 CAL. L. REV. 1735, 1737 (1985) [hereinafter
Wright, Causation in Tort Law] (capsulizing this trend, beginning with Prossers comment that causation is the
simplest and most obvious problem when determining tortious liability). For similar explanations about the
apparent simplicity of causation, see also W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS
(5th ed. 1984); H.L.A. HART & TONY HONOR, CAUSATION IN THE LAW (2d ed. 1985); JOHN G. FLEMING, THE
LAW OF TORTS (9th ed. 1998) [hereinafter FLEMING, THE LAW OF TORTS].
2. Indeed, torts scholars have echoed this belief for some time, beginning with Wex S. Malone, Ruminations
on Cause-in-Fact, 9 STAN. L. REV. 60 (1957), and Leon Green, The Causal Relation Issue in Negligence Law, 60
MICH. L. REV. 543 (1962). See also Wright, Causation in Tort Law, supra note 1, for another capsulization of this
theoretical movement.
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These types of cases nag at ones sense of justice and are problematic for courts
expected to apply predictable, rational legal principles. If, out of a set of two or more
competing, independent possible causes, the plaintiff cannot definitively prove on a balance
of probabilities that one competing independent cause of her injury is the defendants
negligence, the plaintiff cannot succeed on traditional cause-in-fact principles. Yet, when a
plaintiff can establish that the defendants conduct fell below the applicable standard of
care, some courts in the United States, Canada, and Britain have refused to rob the plaintiff
of an opportunity to prove causation and have modified cause-in-fact doctrine to
accommodate the plaintiff. Three methods that courts use to aid a plaintiff have emerged
through various courts continued exposure to these types of cases: (1) a court could
reverse the burden of proof of causation to the defendant to disprove causation; (2) a court
could infer causation based on a reasonable conclusion on the facts of the case; or (3) a
court could hold the defendant liable for materially increasing the risk of injury to the
plaintiff. Because these methods depart from traditional, established torts doctrine, each of
these solutions owes its existence to subtle, competing policy considerations.
Understanding the application of judicially created cause-in-fact doctrine to a case where
proof of cause is at best ambiguous, necessitates understanding what has driven the court to
tinker with existing tort doctrine in the first place. It is the aim of this article to explore
how these three modifications to traditional cause-in-fact principles operate, examine why
they arose, and then use a normative lens to evaluate why they need to be consolidated into
a predictable and portable outgrowth of causation doctrine.
This article is divided into four substantive sections. Part II defines the landscape of
cause-in-fact doctrine and explains how American, Canadian, and British courts have
modified this landscape to oblige ambiguous causation cases. Part III evaluates the judicial
modifications of cause-in-fact doctrine and explores the often unarticulated motivations that
drive a courts use of these innovations. First, reversal of the burden of proof of causation
from the plaintiff to the defendant is considered. Next, the approach that proves cause
based on the defendants material increase of risk of injury to the plaintiff is evaluated.
And finally, the practice of proving causation based on reasonable inferences on the facts
of the case is examined. Part IV is the pivotal division of the article, where the three
alternative approaches to cause-in-fact are synthesized to produce a new, normative3
method for deciding ambiguous cause-in-fact cases. This method, called structured
causation, reifies existing torts principles in a fashion that is also compatible with a
positivist interpretation of what courts have been doing. Part V explains how structured
causation accomplishes the normative goals, which are compatible with the competing tort
theories of efficiency and corrective justice.
II.
THE LANDSCAPE OF CAUSE-IN-FACT DOCTRINE
Courts in the United States, Canada, and Britain have long struggled with the slippery
concept of causation. Legal doctrine has been shaped over the years to assist fact finders in
determining the answer to the crucial question in a negligence action: What made this
incident happen? An automobile accident could be caused by icy road conditions, faulty
3. In an effort to simplify the goals of this article, and with apologies to legal philosophers for glancing over
the intricacies of each term, the term normative is used throughout this article in its generally applicable sense as
describing what ought to be a prescriptive fix for the law. The term positivist is used in its generally applicable
sense as what is, or as an explanation for, how the law operates now and has operated in the past. For an excellent
parlay into the significance of these terms in relation to the circular nature of causation in tort law, see Richard
Fumerton & Ken Kress, Causation and the Law: Preemption, Lawful Sufficiency, and Causal Sufficiency, 64 LAW
AND CONTEMP. PROB. 83, 8389 (2001).
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brakes on the automobile, or the driver speeding through a stoplight without stopping. If
the defendants negligence is found to be a cause of the plaintiffs injury, then the
defendant is held liable and must compensate the plaintiff.
Causation is comprised of two components which are applied in succession in a
negligence action to determine whether or not the defendants negligence was the
responsible cause of the plaintiffs injury. The first component, cause-in-fact, involves
determining whether or not a defendants negligence was a de facto cause of the plaintiffs
injuries. In other words, cause-in-fact determines whether, but for the defendants
negligence, the plaintiff would have suffered the injury. The second causal component,
proximate cause, involves determining whether or not the defendants negligence is too
remotely connected to the plaintiffs injury to be a foreseeable cause of that injury.4
Proximate cause is an admittedly complex and policy-laden concept, which has plagued
legal scholars for some time.5
This article is concerned with the modifications and application of cause-in-fact
doctrine only. Cause-in-fact is traditionally considered to be less contentious and more
predictable than proximate cause. Indeed, many torts scholars and fact finders argue that
cause-in-fact is a straightforward question of common sense.6 This paper aims to revise
that tradition of thinking by proffering evidence that, in a certain subset of negligence
actions, cause-in-fact doctrine has the potential to be just as contentious, unpredictable, and
policy laden as its counterpart, proximate cause. The recognition of this phenomenon
necessarily calls for a new, structured approach to determining causation in certain cases
where cause-in-fact is at issue.
A cross-jurisdictional comparative approach is adopted throughout the cause-in-fact
analysis for three reasons. First, modifications to traditional judicial treatment of cause-infact have become more prevalent in the United States, Canada, and Great Britain in the past
thirty years. This movement toward a more flexible causal doctrine may in fact stem from
the utilization of a dated cause-in-fact doctrine in a world becoming increasingly more
complex. Second, the three jurisdictions exhibit a surprisingly parallel evolution of causal
doctrine and are not developing cause-in-fact modifications independently but in
conjunction with each other. A study of one single jurisdiction is therefore unsatisfactory
as courts often utilize precedents from all three jurisdictions when charting the course of
cause-in-fact principles. And third, a comparison of each jurisdiction to the other can
inform a workable approach toward cause-in-fact that may be utilized in all three
jurisdictions.
A.
The Evolution of Cause-in-Fact Doctrine

1.
The But For Test
The majority of common law cause-in-fact inquiries involve a courts application of

one of two well-established torts principles: the but for test or the substantial factor test
of causation. The but for test is the simpler of the two and is used for the majority of
4. Indeed, in Canadian and British courts, the term foreseeability appears to be preferred over that of
proximate cause.
5. The famous proximate cause case, Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928), has, on its own,
sparked countless analyses from Dean Prosser, Palsgraf Revisited, 52 MICH. L. REV. 1 (1952) to Edward S. Adams,
et al., At the End of Palsgraf, There is Chaos: An Assessment of Proximate Cause in Light of Chaos Theory, 59 U.
PITT. L. REV. 507 (1998).
6. See, e.g., Wright, Causation in Tort Law, supra note 1, at 173740; KEETON ET AL., supra note 1; HART &
HONOR, supra note 1, at 24; FLEMING, THE LAW OF TORTS, supra note 1, at 21819.
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factual circumstances. A plaintiff in a negligence action must prove on a balance of

probabilities that, but for the defendants negligent conduct, the plaintiff would not have
suffered injury.7 Fact patterns which fit the but for test of causation are those where it
can be established on a balance of probabilities that the defendants negligence was a
necessary component of the cause that gave rise to the plaintiffs injury. In most
negligence actions where one plaintiff sues one negligent defendant, that defendants
negligence is usually one of two or more equally competing and mutually exclusive
possible causes. A court weighs the evidence of causation to determine whether or not, on
a balance of probabilities, it can be proven that the defendant caused the plaintiffs injury.
2.
The Substantial Factor or Material Contribution to Injury Test
Some causation matters do not properly fit a straightforward application of the but
for test. The substantial factor test, or the material contribution to injury approach as
it is called in Canada, is used primarily in cases where multiple possible causes for a
plaintiffs injuries exist, each cause being sufficient on its own to have caused the alleged
injury.8 The causes can either be concurrent or successive, but they must be independently
sufficient to have potentially caused the entire injury to the plaintiff. In these cases, the
but for test does not work. It is circular for a court to ask whether or not but for one
cause the plaintiff would not be injured because the other existing cause is still sufficient to
have resulted in the injury. For example, the but for test is unworkable in sorting out the
cause-in-fact of damage to a plaintiffs property resulting from two separately burning fires
that converge together to cause indivisible damage.9 If one fire is caused by the
defendants negligence and one is caused by natural circumstances, a court is not aided by
asking whether, but for the one fire, the plaintiff would not have suffered damage. The
second fire exists and makes dividing the source of causation impossible. Therefore, a
court uses the substantial factor test of causation to determine if a defendants negligent
conduct was a material element, or substantial factor, in bringing about the injury of the
plaintiff. The role of the defendants negligence in bringing about this injury must be
beyond the de minimus range in order to be considered the cause of the injury.
Courts have relied predominantly on the but for test of causation and, in most cases,
a fact finder has little difficulty in determining whether or not a defendants negligence is,
on a balance of probabilities, a cause-in-fact of a plaintiffs injury. The repeated use of this
test, and its nearly automatic application with little explanation in court judgments, may
7. The but for test was enunciated in the United States in New York Cent. R.R. v. Grimstad, 264 F. 334 (2d
Cir. 1920), in which a man drowned after falling off a boat that carried no life preservers. The court held that the
boat owner was not liable. Id. at 335. Although the boat owner was negligent not to have life preservers on board,
that negligence was not a but for cause of the death of the man. Id. The but for test is often invoked in
Canadian cases, such as Kozak v. Funk (1995), 135 Sask. R. 81 (Sask. Q.B.), varied, (1997), 158 Sask. R. 283
(Sask. C.A.). The Kozak decision acknowledges the importation to Canada of Lord Dennings articulation of the
but for test in the British decision, Cork v. Kirby MacLean, Ltd., [1952] 2 All E.R. 402 (C.A.).
8. For the American substantial factor test, see RESTATEMENT (SECOND) OF TORTS 431 (1965). The
Supreme Court of Canada recently reaffirmed the material contribution to injury approach in a case involving
multiple successive accidents. See Athey v. Leonati, [1996] 3 S.C.R. 458, in which the injured plaintiff, who
suffered from a pre-existing degenerative back condition, was involved in two separate automobile accidents
within two months time. The multiple accidents and pre-existing back condition were all potential causes for
Atheys subsequent herniated spinal disc. Id. at 459. The Supreme Court of Canada awarded compensation to
Athey and held that the defendant automobile drivers materially contributed to Atheys injury. Id.
9. These were the exact facts in Kingston v. Chicago & N.W. Ry., 211 N.W. 913 (Wis. 1927), in which the
Wisconsin Supreme Court held that the negligent creation of one fire on the part of the defendant was a substantial
factor in bringing about the damage to the plaintiffs property from the conjoining fires. Id. at 915.
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have led some torts scholars to believe that the but for test was nothing more than a dry
application of a legal principle to easily discernible facts at hand. Even with the more
complicated substantial factor test, court rhetoric usually points to a relatively easy
judgment call about whether or not a defendants negligence was a material element in
causing the plaintiffs injury.
B.
Ambiguous Cause-in-Fact Cases
Courts have sometimes been faced with causal patterns where neither the but for
test nor the substantial factor test of causation produce satisfactory results. There exists a
specific subset of cause-in-fact cases where a court allows a plaintiff to recover even
though she cannot prove on a balance of probabilities that the defendants negligence was
either a but for cause of her injury or a substantial factor in bringing about that injury.
The factual structure of these cases centers first around a plaintiff being able to prove on a
balance of probabilities that the defendant breached the applicable standard of care. Next,
there must exist two or more competing but independent possible causal explanations for
the resultant injury of the plaintiff. One possible cause must be a result of the defendants
negligence. The other possible cause, or causes, must result from some other factor
unrelated to the defendants conduct. Cause-in-fact may be said to be ambiguous. There
must also be an admitted lack of sufficient evidence to tip the scales beyond a balance of
probabilities; otherwise, the but for causation test comes into play. Finally, the plaintiff
must show some evidence connecting the defendants negligent behavior to the cause of her
injury, although the evidence will not be substantial enough to prove that the defendants
negligent behavior was more likely than not the cause-in-fact of the injury.
In other words, the plaintiff must prove that the defendants negligence contributed to
the global risk factors to which the plaintiff was exposed. The defendants contribution to
those global risk factors must exhibit a nature that would likely have aided in bringing
about the particular kind of injury the plaintiff suffered. In these specific types of cases
which turn on cause-in-fact, a plaintiff using the but for or substantial factor test would
fail to prove the defendant was the cause-in-fact of her injury. Specific evidence of the
source of cause as stemming from either the defendants negligence or the other competing
causal explanation is virtually nonexistent. However, the mere fact that the plaintiff can
prove the defendants breach of the standard of care, coupled with at least some evidence
that suggests a connection between that breach and the cause of the particular injury
suffered, often prompts a court to bend the rules of cause-in-fact in favor of the injured
plaintiff. Courts of all jurisdictions sometimes seem loathe to deny compensation for a
plaintiff in this circumstance. The severity of harm to the plaintiff, the amount of
compensation sought, and the perceived undesirability of the negligence of the defendant
are all factors that weigh into a courts causal determinations. The theoretical and resultant
policy reasons behind this tendency will be explored throughout this article. What is
important to note at this stage of the analysis is that courts have begun to shape alternative
cause-in-fact doctrines to assist plaintiffs faced with these ambiguous cause-in-fact
conundrums.
Some examples are in order to demonstrate the precise fact pattern of what will be
called ambiguous cause-in-fact cases. The key in recognizing an ambiguous cause-in-fact
case is identifying the fact that prima facie evidence of the defendants negligence as a
cause-in-fact of the plaintiffs injury is as inconclusive and unavailable as evidence of an
alternative possible cause-in-fact. In non-causal terms, no one knows, or will ever know,
precisely what happened.
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In Haft v. Lone Palm Hotel,10 a father and son were found mysteriously drowned in a
pool operated by the defendant. The local statute mandated either lifeguard service or
proper signage if no lifeguard was on duty. The defendant did not comply with either of
these requirements, and there was no evidence as to how the deaths occurred. The
California court broke with traditional torts principles and reversed the burden of proof of
causation to the defendant, who then had to disprove his role in causing the accident.11
This case fits the pattern of an ambiguous cause-in-fact scenario because the plaintiff can
prove that the defendant was negligent but cannot precisely link that negligence to a morelikely-than-not cause of the injuries suffered. A court is therefore faced with two options.
It can choose to compensate the plaintiff and accept that there exists a chance that perhaps
the defendant really is not liable for the injury. Or, in the alternative, the court could deny
compensation for the plaintiff, even though evidence of the defendants negligence points
to the negligent behavior being a possible cause of the injuries. The traditional torts
principles of but for and substantial factor causation do not offer courts much assistance
in cases like Haft. Courts must judge whether or not to modify cause-in-fact rules in the
interest of compensating plaintiffs.
Canadian courts are also challenged by ambiguous cause-in-fact cases. The Supreme
Court of Canada in Snell v. Farrell12 adopted a modified causation test in indemnifying the
plaintiff in a medical malpractice action. The defendant, Dr. Farrell, negligently performed
eye surgery on Mrs. Snell, a diabetic with a number of pre-existing health complications.
During the surgery, Mrs. Snell suffered blindness in her one eye. She simultaneously
experienced a stroke in that same eye, which could also have caused her blindness.
Evidence at trial could not conclusively point to whether or not her blindness was caused
by Dr. Farrells negligence or by Mrs. Snells deteriorating health condition. The Supreme
Court of Canada bypassed the traditional but for test of causation and inferred causation
on the part of Dr. Farrell. This case also fits the pattern of an ambiguous cause-in-fact
scenario: Although the plaintiff could prove that the defendants negligence contributed to
the global risk factors for the particular type of injury suffered, she could not link that
negligence to the actual cause of the injury. Both Dr. Farrells negligence and Mrs. Snells
poor health were independent and equally plausible causes of Mrs. Snells blindness.
Similarly, British courts are tempted to bend the rules of causation in favor of
plaintiffs in ambiguous cause-in-fact cases. The famous case of McGhee v. National Coal
Board,13 cited in precedents and scholarship in both Canada and the United States, involved
the House of Lords innovative approach to solving the seeming unworkability of a causal
scenario.14 In McGhee, the plaintiff was a brick kiln worker who rode home from work
every day caked in brick dust. He developed dermatitis and sued his employer. At issue
was whether or not the cause-in-fact of the dermatitis was the employers negligence in not
providing shower facilities for its employees. There existed a possibility that the dermatitis
was a result of some other non-negligent cause. Again, an application of the but for test
left the plaintiff uncompensated and the negligent defendant unpunished because cause was
ambiguous. The court therefore decided to indemnify the plaintiff and modify cause-in-fact
doctrine to allow for recovery. The House of Lords decreed that the defendant had
10. 478 P.2d 465 (Cal. 1970).
11. This approach has since been rejected by the California Supreme Court for asbestos-related cancer
injuries. The burden of proof remains with the plaintiff. See Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203,
1206 (Cal. 1997).
12. [1990] 2 S.C.R. 311.
13. [1973] 1 W.L.R. 1 (H.L. 1972).
14. McGhee was recently upheld in principle by the House of Lords in Fairchild v. Glenhaven Funeral Servs.
Ltd., [2002] 3 W.L.R. 89 (H.L.).
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materially increased the risk of injury to the plaintiff and that this material increase of risk
of injury was enough to deem that the defendant had caused the injury.15
These three examples of ambiguous cause-in-fact cases demonstrate a recurring
evidentiary pattern. They also demonstrate a strong desire on the part of fact finders to
adjust legal doctrine to favor plaintiff recovery over allowing a negligent defendant to
escape liability in the face of negligent conduct.
Ambiguous cause-in-fact cases do not commonly arise in courts but are a unique
subset of cases. However, they are more likely to work their way to trial as the
characteristic lack of causal evidence makes settlement difficult. Furthermore, ambiguous
cause-in-fact cases are doctrinally significant as courts shape causal policy while wrestling
with whether or not to modify traditional tort principles. In other words, despite the small
number of ambiguous cause-in-fact cases that do exist, much of the evolution of cause-infact principles results from the appearance of these cases in the court system. The
increasing complexity of the causation disputes brought to court, coupled with the
advancement of science and computer technology, may result in more ambiguous cause-infact cases being tried. Medical malpractice, computer negligence, and even automobile
accident tort actions are all being affected by the increased availability of scientific
evidence that may assist in proving cause-in-fact. However, the adversary systems usage
of competing science and competing expert witnesses may be increasing not the ability to
pinpoint cause-in-fact, but the tendency to prove that cause is only a matter of perspective,
made up of shades of gray. This trend may actually prompt more and more cases to be
characterized as ambiguous cause-in-fact cases because science has the ability to ferret out
alternative competing possible causes for a plaintiffs injuries. This could also foster a
parallel increase in courts utilization of modifications to traditional cause-in-fact doctrine.
C.
Modifications to Traditional Cause-in-Fact Tests
Ambiguous cause-in-fact cases have spawned three judicial modifications to

traditional cause-in-fact doctrine.16 A brief introduction to the three modifications follows
in order to flesh out the debate behind a fact finders use of one competing cause-in-fact
approach over another. Each approach will then be discussed and evaluated in detail.
1.
The Reversal Approach: Reversing the Burden of Proof of Causation to the

Defendant
The first approach, as mentioned in Haft v. Lone Palm Hotel,17 involves reversing the
burden of proof of causation to the defendant. This requires the defendant to marshal
evidence to disprove causation. If the defendant cannot prove that his negligence was not
the cause of the plaintiffs injury, he is deemed to have caused the plaintiffs injury. This
causal approach appears to be used most often when a fact finder determines that a
defendant will likely have more information about causation than would the plaintiff. The
approach owes its origin to those cases of multiple defendants acting together to cause a
15. McGhee, [1973] 1 W.L.R. at 6. Lord Wilberforce went further than the rest of the House of Lords and
seemed to advocate a reversal of the burden of proof of causation to the defendant. Id. at 7.
16. Lewis Klar notes that the law has three options when the but for and substantial factor tests fail: (1) the
law can redefine the nature of cause and modify the but for test or ignore it; (2) the law can shift the onus for
the burden of proof of causation or require something less than a balance of probabilities to prove causation; or
(3) the law can redefine the nature of the plaintiffs injury. LEWIS KLAR, TORT LAW 324 (2d ed. 1996)
[hereinafter KLAR, TORT LAW].
17. 478 P.2d 465 (Cal. 1970).
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single, indivisible harm, such as two hunters negligently and simultaneously firing upon
one plaintiff.18 The reasoning behind the courts departure from traditional tort principles
rests on the belief that the plaintiff was robbed of the ability to prove causation because the
defendants negligence destroyed that proof. For example, in a medical malpractice
ambiguous cause-in-fact case, the burden of proof of causation may be reversed to the
defendant hospital when the hospitals nursing team fails to properly maintain the patients
medical chart, thereby resulting in that patient receiving substandard medical treatment.19
2.
The Increased Risk Approach: Proving the Defendant Materially Increased the
Risk of Injury
The second modification to traditional cause-in-fact principles first appeared in the

McGhee v. National Coal Board20 case. There, the majority of the House of Lords
determined that a defendant employers negligence was the cause-in-fact of the plaintiffs
injuries if the plaintiff could prove that the defendant materially contributed to the injury of
the plaintiff.21 A material contribution to an injury was held to be synonymous with saying
that the defendant materially contributed to the risk of injury. Lord Wilberforce went
further to state that if a plaintiff proved the defendant materially contributed to the risk of
injury occurring, the burden of proof on the causation issue shifted to the defendant.22 Lord
Wilberforces modification of cause-in-fact doctrine combines the reversal approach with a
novel material contribution to the risk of injury approach.
A surprising number of courts in Canada, the United States, and Britain adopted
causal doctrines similar to that espoused by Lord Wilberforce, which allow a plaintiff to
prove cause-in-fact based on evidence of the defendant materially increasing the risk of
injury to the plaintiff. Unlike the majority of the House of Lords, some courts made a
distinction between materially increasing the risk of injury and materially contributing to
the injury itself.23 The increased risk approach was seen as a flexible, discretionary method
for dealing with ambiguous cause-in-fact cases. A smaller number of courts also utilized
the reversal approach in conjunction with the increased risk approach, keeping more closely
with Lord Wilberforces original concept.
18. Compare Summers v. Tice, 199 P.2d 1 (Cal. 1948), with Cook v. Lewis, [1951] S.C.R. 830 (nearly
identical U.S. and Canadian decisions).
19. This was the fact situation in Joseph Brant Meml Hosp. v. Koziol, [1978] S.C.R. 491. However, the
Supreme Court of Canada overruled the Ontario Court of Appeals use of Cook v. Lewis, [1951] S.C.R. 830, to
reverse the burden of proof to the nursing staff. Joseph Brant Meml Hosp., [1978] S.C.R. at 501. See also Look
v. Himel, [1990] O.J. No. 1073 (Ont. Gen. Div.), available at 1991 WL 1142616, and Pike v. Peace Arch Dist.
Hosp. Socy, [1985] 33 A.C.W.S.2d 490 (B.C.), available at 1985 A.C.W.S.J. Lexis 21146, where Canadian courts
have entertained but rejected the reversal idea in cases involving negligent upkeep of hospital notes. A similar
type of reversal did in fact occur in the American case of Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944), where the
court used the doctrine of res ipsa loquitur to, in effect, reverse the burden of proof of causation to the defendant
physicians. See infra Part III.C for a discussion of the conceptual differences between the inference approach to
cause-in-fact and using res ipsa loquitur to make determinations based on circumstantial evidence.
20. [1973] 1 W.L.R. 1 (H.L. 1972).
21. Id. The speeches of Lord Reid, Lord Simon of Glaisdale, Lord Salmon, and Lord Kilbrandon discuss the
increased risk approach as functionally equivalent to the substantial factor, or material contribution to injury test.
See infra Part II.A for a discussion of the fundamental difference between basing cause on increase of risk, as
opposed to mere presence of an alternative but independently sufficient cause. Courts in Canada and Britain have
erroneously blurred the distinction between the two concepts.
22. McGhee, [1973] 1 W.L.R. at 2223.
23. For a complete discussion of the cases exhibiting this trend, see infra Part III.B.1.
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The Inference Approach: Inferring Causation from the Facts of the Case
The third approach to ambiguous cause-in-fact cases, as demonstrated in cases like

Snell v. Farrell,24 has become the dominant method for dealing with ambiguous cause-infact cases. If a plaintiff can prove that a defendant was negligent but cannot also prove that
the negligence was, on a balance of probabilities, a but for cause of the injury, courts
have allowed a plaintiff to recover, provided that the plaintiffs evidence nearly establishes
but for causation. If the evidence comes close to proving causation on a balance of
probabilities, a court may infer causation on the part of the defendant. U.S., Canadian, and
British courts use these causal inferences in situations when the defendant is allowed to
escape liability despite the existence of some positive evidence that indicates the
defendants negligence may be a possible cause of the plaintiffs injury. A difficulty with
this incarnation of cause-in-fact doctrine is that it is relatively unstructured and
unpredictable, leaving a great deal of discretion to the fact finder and his or her evaluation
of both the sufficiency of the evidence and the relative wrongdoing of the defendant.
D.
The Importance of Ambiguous Cause-in-Fact Cases: Hints of Policy and Theory
Before discussing in detail the three approaches to ambiguous cause-in-fact cases, it is

important to at least briefly introduce the subtle theoretical and policy subtexts at work that
steer each approach.
1.
Policy Drives Modifications to Traditional Cause-in-Fact Principles
A preliminary question that must be answered is: Why modify traditional cause-infact principles in the first place (i.e., what is the normative goal to be gained)? It has been
shown that the particular fact circumstances of ambiguous cause-in-fact cases render the
but for or substantial factor tests of causation unworkable and deny compensation to the
plaintiff. Because there are two independent, competing alternative causes of a plaintiffs
injury, one cannot say but for one cause, the plaintiff would not have been injured. The
existence of the second alternative cause negates the answer: But for the negligent cause,
the other non-negligent cause still exists as a potential source for the injury. Similarly, the
defendants negligence cannot be a substantial factor in the cause of injury because the two
competing possible causes are independently exclusive of one another. Either one possible
cause was the source of the injury or the other one was. Therefore, an application of either
test leaves a plaintiff uncompensated, even though it is clear that the defendant created a
risk of a specific injury and the plaintiff was exposed to that risk and suffered the specific
injury.
Something troubles most courts faced with ambiguous cause-in-fact cases, which
prompts them to attempt to assist the plaintiff through a modified causation standard. It
likely stems from the fact that the plaintiff can prove that the defendant behaved
negligently. A court must choose between the lesser of two evils: compensate the plaintiff
or allow the negligent defendant to escape liability. There is a powerful unsettling rhetoric
at work in permitting the negligent defendant to escape liability, through no fault of the
plaintiff, merely because proof of causation does not quite meet a balance of probabilities
standard. It is no wonder that a court most often chooses to side with the plaintiff. Yet, in
doing so, a court must make a decision based not on the facts presented but on pure policy.
24. [1990] 2 S.C.R. 311.
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As Nancy Lee Firak notes, the policy furthered is this: [T]hat plaintiff, having suffered a
recognized injury should be entitled to compensation; and that defendant, having created a
risk of the kind that injured plaintiff, should bear the cost of compensation.25
Cause-in-fact decisions based on normative policy are anathema to some torts
scholars. Indeed, many insist that policy-based cause-in-fact determinations cannot exist.
But ambiguous cause-in-fact cases stand as a definitive example that, sometimes, cause-infact decisions can be based purely on policy. Dean Prosser,26 John Fleming,27 and Leon
Green28 have advocated that cause-in-fact determinations are factual decisions where
evidence is simply applied to traditional causation doctrine. H.L.A. Hart and Tony Honor
argue that layperson common sense guides cause-in-fact decisions, and no policy is ever
invoked. Richard Wright attempts to create a non-normative tool for analyzing cause-infact.29 Yet all these notions appear to ignore the practical reality that courts are bending
traditional rules to accommodate ambiguous causation cases. The fecundity of discretion
embodied in these ambiguous causation cases demonstrates that courts do resort to policy
decisions where a straightforward factual application of traditional principles falls short of
a courts perceived goal.
It should be noted that, despite recent modifications to causal doctrine, not all
ambiguous cause-in-fact cases are resolved in favor of the plaintiff. In Knotterus v. North
Park Street Railway Co.,30 a roller coaster derailed, causing injuries to the plaintiff. There
was evidence that the derailment could have been caused by a large wood chip which the
wind had blown from an area where the defendants employees were performing
construction work. Alternatively, there was evidence that the derailment may have been
caused by defective work performed by the owner of the amusement ride who was not a
party to the action. The evidence adduced proved neither cause beyond a balance of
probabilities, but both the trial and appellate courts found for the defendant. Thus, the
apparent lack of predictability in this subset of causation cases further underlines that courts
are basing their decisions on some unarticulated justice goals.
An increasing reliance on normative policy to solve difficult causation issues has been
demonstrated in most ambiguous cause-in-fact cases. This tendency will become lucid in
the ensuing analysis of the specific methods of dealing with ambiguous cause-in-fact cases.
Wex Malone argues that cause-in-fact is not some dry, calculable thing but full of policy.31
His belief in the inextricable tie between normative policy and cause-in-fact has been
echoed by Guido Calabresi,32 D.M.A. Strachan,33 John Borgo,34 and Harper, James and
25. Nancy Lee Firak, Alternative Forms of Liability: Developing Policy Aspects of the Cause-in-Fact
Requirement of Tort Law, 20 ARIZ. ST. L.J. 1041, 1068 (1988).
26. See PROSSER, supra note 1, at 2324.
27. See FLEMING, THE LAW OF TORTS, supra note 1, at 21819.
28. See Green, supra note 2, at 54852.
29. This test, called the NESS (Necessary Element of a Sufficient Set) test, requires that, in order to hold a
particular event in a causal chain as the cause, it must be a necessary element in that chain which brought about
the plaintiffs particular injury. Richard Wright, Causation, Responsibility, Risk, Probability, Naked Statistics, and
Proof: Pruning the Bramble Bush by Clarifying the Concepts, 73 IOWA L. REV. 1001, 1019 (1988) [hereinafter
Wright, Clarifying the Concepts]. Wrights formulaic approach to cause-in-fact is criticized by Richard Fumerton
and Ken Kress as giving the appearance of being a non-normative prescription to causation, but, in fact, Wrights
approach is just as normative as that which it hopes to replace. Fumerton and Kress argue that the very idea of
lawful sufficiency is itself subjective. One presupposes the other. See generally Fumerton & Kress, supra note 3.
30. 53 N.W. 529 (Mich. 1892).
31. Malone, supra note 2, at 64.
32. Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. CHI. L.
REV. 69, 10607 (1975).
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Grey.35 Each commentator stresses that courts base causal decisions on policy
considerations such as perceived efficiency, deterrence considerations, compensation goals,
or the desire to redress a perceived wrongdoing. The rise of alternative modes of proving
causation beyond the traditional but for test may be a renewed recognition of the
importance of maintaining the above stated policy goals in an increasingly complex world.
But for causation is becoming increasingly more difficult to prove in court as science and
technology create not more certainty in causal evidence, but more shades of grey.36 There
is a corresponding need to increase regulation of new activities which impose risk of harm
as a byproduct of scientific advancement. The tort system serves as a malleable method of
regulating these new industries. As a result, unlike scientific causality, legal causality is
becoming easier to prove in order to have the tort system serve this regulatory function by
imposing liability on negligent defendants. Furthermore, the reverberative effect of the law
and economics movement may also be affecting the decline of strict proof of cause. Law
and economics characterizes causation as less of a determinative element in an efficient tort
system than, for example, an applicable liability standard of either negligence or strict
liability.37 All these factors combine to create a normative, judicially created causal
doctrine.
2.
The Inherent Indeterminacy of Cause-in-Fact Cases
The three judicial modifications to the traditional but for test of causation are rife
with policy underpinnings. Each approach allows a great deal of judicial discretion. What
is most curious is that a court does not usually articulate the reasoning behind the
application of modified rules of causation in ambiguous cause-in-fact cases. The judge
merely announces that a certain approach will be taken, states the appropriate precedential
authority, and then finds for the plaintiff or defendant.38 The written decision is usually
33. D.M.A. Strachan, The Scope and Application of the But For Causal Test, 33 MOD. L. REV. 386, 389
(1970) (noting that the but for test of cause-in-fact attempts to be objectively scientific but, in fact, is subject to
policy considerations).
34. John Borgo, Causal Paradigms in Tort Law, 8 J. LEGAL STUD. 419, 43940 (1979) (arguing that causal
determinations are not goal neutral but subject to the underlying policy considerations of the courts).
35. Fowler Harper and Fleming James, Jr. survey Calabresis notion that cause-in-fact is actually designed to
serve human goals and the inherently demonstrable flexibility of causal determinations reflects the operation of
these goals. 4 FOWLER V. HARPER & FLEMING JAMES, JR., THE LAW OF TORTS 20.2 n.1, at 8991 (2d ed. 1986).
36. Judith Jarvis Thomson, The Decline of Cause, 76 GEO. L.J. 137 (1987) (outlining that, because of the
increasing demands of regulating new technological industries, causation is becoming increasingly blurry, and this
phenomenon has aided plaintiffs during the past two decades).
37. For arguments regarding the importance of liability standards over causal policy, see in particular Richard
Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151 (1973), in which he argues that the but for test is
inaccurate, too philosophical, too reliant on hypotheticals, and too administratively costly. In its place, Epstein
proposes a regime of strict liability where a party who harms another party is strictly liable for that harm. For
alternative economic proposals of liability regimes which reduce the importance of cause-in-fact in traditional torts
scenarios, see Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. LEGAL
STUD. 463 (1980) [hereinafter Shavell, An Analysis of Causation]; Steven Shavell, Uncertainty Over Causation
and the Determination of Civil Liability, 28 J.L. & ECON. 587 (1985) [hereinafter Shavell, Uncertainty Over
Causation], and WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW (1987)
[hereinafter LANDES & POSNER, ECONOMIC STRUCTURE]. Shavell, Landes, and Posner posit that the use of more
probabilistic, statistical evidence coupled with a furthered understanding of the ex post causal risks involved in a
torts situation would lead to a simplification of the causation analysis in a negligence regime.
38. Examples abound of this judicial reluctance to explain the departure from traditional causal principles.
Generally, once an alternative causal approach is first developed in the common law, its use as a future precedent is
reduced to a nearly automatic application when a court deems its use necessary. In Audet (Guardian ad Litem of)
v. Bates, [1998] 78 A.C.W.S.3d 406 (B.C.), available at 1998 A.C.W.S.J. Lexis 81941, the British Columbia
Supreme Court adopted the inference approach as advocated in Snell v. Farrell, [1990] 72 D.L.R.4th 289 (B.C.).
The case dealt with whether or not the pinching of a fetuss umbilical cord by a physician later caused brain
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tacit on the subject of what pressed the judge first to adopt a modified rule of causation and
second to find for the particular party.
While there exist three distinct forms of adjusted causal doctrine to deal with
ambiguous cause-in-fact cases, all three forms may not differ in actual effect on the
outcome of the case. In fact, the only difference between reversing the burden of proof of
causation and inferring causation or finding a material increase of risk of injury may be a
semantic difference. Throughout the analysis of ambiguous cause-in-fact approaches, it
will become apparent that no ambiguous cause-in-fact case cited in this study would have
been decided any differently had any one of the three causal tools been utilized by the
courts. Fact finders who reach for a modified causation test may be searching only for a
method of rhetoric to find for the party that, for normative reasons, they believe should be
successful in the action.39 Judicially determined cause-in-fact exists not in absolutes but on
continuums.
The crucial difference, states Stephen Pincus, between the but
for test[,] . . . on one hand, and the increased risk test, material contribution test or
substantial factor test, on the other, is linguistic.40 Courts that decide ambiguous causein-fact cases might appear unpredictable, unstable, and somewhat maverick. Their causal
determinations do not seem fettered by the particular cause-in-fact approach they apply.
3.
Theory Behind the Policy of Cause-in-Fact
Competing traditional positivist and normative tort theories have long attempted to
provide an explanation for why judges make causal determinations and, subsequently, how
they should make causal determinations. These explanations may provide some insight into
what policy considerations are behind a courts decision in ambiguous cause-in-fact cases.
Traditionally, tort law has been seen as a legal regime designed to both compensate the
injured and deter undesirable behavior. Acting as a rough and ready public insurance
system, tort law provides a mechanism to redress the needs of a plaintiff who has suffered
damages. At the same time, the fear of tort liability can act as a deterrent to curb potentially
harmful social behavior. Cause-in-fact decisions could therefore turn on a fact finders
desire to compensate an apparently needy plaintiff or, alternatively, to deter egregious
behavior on the part of the defendant. This insurance-deterrence duality has taken on
significance by shaping two influential modern tort theories.
damage to the child. The court inferred causation to the defendant physician in this ambiguous cause-in-fact case
by merely stating that it was adopting the inference principle from Snell v. Farrell and inferring causation:
In the absence of evidence from Dr. Bates consistent with the likelihood of a contrary cause, I am
permitted to, and do, infer as fact that the artificial rupture of the membranes was the cause of the
prolapse which eventually injured Teddy.
The approach which I have followed in the determination of causation is that mandated by the
Supreme Court of Canada in the case of Snell v. Farrell.
Audet, [1998] 78 A.C.W.S.3d at 424. This lack of judicial reasoning and straightforward application of alternative
cause-in-fact approaches is typical of most judgments concerning ambiguous cause-in-fact scenarios.
39. Such is the argument of Stephen Pincus, who posits that a linguistic analysis of causation cases
demonstrates that the language chosen by the fact finder is nearly immaterial once traditional causal principles are
abandoned. Stephen N. Pincus, Progress on the Causal Chain Gang: Some Approaches to Causation in Tort Law
and Steps Toward a Linguistic Analysis, 24 OSGOODE HALL L.J. 961, 101011 (1986).
40. Id. at 994.
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The corrective justice movement views as integral the moral significance in the
relationship struck between an injured plaintiff and the wrongdoer defendant.41 Causal
judgments, under this theory, are made based on perceptions about a plaintiffs normative
loss at the hands of the defendant. Fact finders are prompted to restore the moral balance
between the injured plaintiff and negligent defendant. The insurance and deterrence
functions of tort law should therefore be utilized to further the goal of redressing the moral
wrongdoing of the defendant.
The law and economics movement argues that tort laws goal is the efficient
maximization of wealth.42 Using money as a measure of worth, efficiency theory puts faith
in the market and freedom of contract to check and counter rising accident and
administrative costs of the torts system in attempting to strike the most efficient balance.
The theory uses a rational actor model where players in the tort system behave rationally by
being risk-neutral cost avoiders. Law and economics theorists are not concerned with the
distribution of wealth, but rather the maximization of the total possible wealth in each torts
transaction. To this end, legal economists believe that the structure of the insurance and
deterrence effects of tort law should be aimed at promoting efficient behavior. Both
corrective justice and efficiency theory will be used as positivist lenses to explain the
development of new causal solutions utilized by courts. Afterward, each theory will be
used in its normative sense to test the validity of a novel approach to ambiguous cause-infact cases.
III.
A.
MODIFICATIONS TO TRADITIONAL CAUSE-IN-FACT DOCTRINE
The Reversal Approach
One method of resolving ambiguous cause-in-fact cases involves reversing the burden
of proof of causation to the defendant to disprove causation. A plaintiff must first prove
41. See the work of corrective justice theorists Ernest J. Weinrib, Lewis N. Klar, and Richard Wright. For
Weinribs conception of corrective justice, see Ernest J. Weinrib, The Special Morality of Tort Law, 34 MCGILL
L.J. 403 (1989) [hereinafter Weinrib, Special Morality]; Ernest J. Weinrib, Causation and Wrongdoing, 63 CHI.KENT L. REV. 407 (1987); Ernest J. Weinrib, A Step Forward in Factual Causation, 38 MOD. L. REV. 518 (1975)
[hereinafter Weinrib, A Step Forward]; TORT LAW: THE INTERNATIONAL LIBRARY OF ESSAYS IN LAW AND LEGAL
THEORY (Ernest J. Weinrib ed., 1991). Weinrib references moral philosophy of the Greeks and Kant in forming
his notion that tort law should be a system for redressing moral wrongs and making plaintiffs whole again. See
generally Weinrib, Special Morality, supra. For Wrights conception of corrective justice, see Richard Wright,
Actual Causation vs. Probabilistic Linkage: The Bane of Economic Analysis, 14 J. LEGAL STUD. 435 (1985)
[hereinafter Wright, Actual Causation]; Richard Wright, The Efficiency Theory of Causation and Responsibility:
Unscientific Formalism and False Semantics, 63 CHI.-KENT L. REV. 553 (1987) [hereinafter Wright, The
Efficiency Theory]; Wright, Causation in Tort Law, supra note 1. Wright perceives corrective justice to be the
maintenance of responsibility between a victim and a wrongdoer. He argues that no other system is as effective in
performing this important role. Wright, Clarifying the Concepts, supra note 29, at 1004, 107677. Klar echoes
Wrights notions of tort law enforcing responsibility and underscores Weinribs insistence that moral philosophy is
the unique underpinning driving the torts system. See Lewis N. Klar, The Role of Fault and Policy in Negligence
Law, 35 ALTA. L. REV. 24, 2931 (1996) [hereinafter Klar, Fault and Policy].
42. For differing views of the law and economics conceptions of efficiency in causation, see the works of the
legal economists Richard Epstein, Steven Shavell, William Landes, and Richard Posner, supra note 37. Shavell
uses economic theory to argue that causation may be logically deduced to a relative economic certainty. Shavell,
Uncertainty Over Causation, supra note 37, at 589. While this may be true on an ex post analysis, it is
questionable how Shavells economic variables could be discerned on an ex ante basis. Wright, Actual Causation,
supra note 41, at 446. Therefore, the value of his efficiency model on a normative basis may be limited. Id. at
447. Similarly, Landes and Posner engage in an ex post causal risk analysis and, in turn, reduce the operation of
causation as a determinative element of the negligence action. Id. at 454. For sharp criticism of Shavell, Landes,
and Posner, as well as the entire efficiency movement, see Wright, The Efficiency Theory, supra note 41.
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that the defendants conduct fell below the applicable standard of care. This breach of the
standard of care must have increased the risk of the particular injury suffered by the
plaintiff. If the defendant cannot prove that his negligence was not the cause of the
plaintiffs injury, he is deemed to have caused the plaintiffs injury. This causal tactic
appears to be used most often when a fact finder determines that a defendant will likely
have more information about causation than would the plaintiff. Judge Learned Hand best
captured the spirit of reversing the burden of proof to the defendant by stating: The single
tortfeasor cannot be allowed to escape through the meshes of a logical net. He is a
wrongdoer; let him unravel the casuitries resulting from his wrong.43
1.
The Genesis of the Reversal Approach
The judicial history of this modification to the traditional but for test reveals some
of the difficulties of resolving ambiguous causation cases solely in this fashion. Reversing
the burden of proof to the defendant to disprove causation was first used in the United
States and Canada in cases involving multiple defendants whose negligent actions came
together to produce a single, indivisible harm.44 The impossibility of sorting out which of
the multiple defendants was solely responsible for the harm led courts to craft legal doctrine
that aimed to accommodate for the perceived injustice of robbing a plaintiff of any chance
of recovery through factors beyond the plaintiffs control. It was the collusion of negligent
action that destroyed a plaintiffs ability to prove cause-in-fact. Furthermore, it was
thought that the two negligent defendants were informationally better equipped to sort out
who had the greater role in bringing about the injury. Imposing joint and several liability
on the multiple defendants who were unable to disprove causation seemed to have an
information-forcing effect, which prompted the defendants to sort out amongst themselves
who would compensate the plaintiff.45
The philosophical underpinnings of these multiple defendant cases were transformed
into a possible solution to determining causality in ambiguous cause-in-fact cases. In
McGhee v. National Coal Board,46 Lord Wilberforce of the House of Lords appeared to
reverse the burden of proof of causation to the defendant employer. The plaintiff employee
could prove that the employer materially increased the risk of workplace injury by not
providing shower facilities to allow workers to clean themselves; however, he could not
prove that it was this negligence that caused his dermatitis. In the spirit of Cook v. Lewis47
and Summers v. Tice,48 Lord Wilberforce held that this material increase in risk of injury
was enough to prompt a switch in the traditional burden of proving causation:
And if one asks which of the parties, the workman or the employers, should
suffer from this inherent evidential difficulty, the answer as a matter in policy
and justice should be that it is the creator of the risk who, ex hypothesi must be
43. Navigazione Libera T.S.A. v. Newton Creek Towing Co., 98 F.2d 694, 697 (2d Cir. 1938).
44. Most prominent are the shooting cases. See, e.g., Summers v. Tice, 199 P.2d 1 (Cal. 1948); Cook v.
Lewis, [1951] 1 S.C.R. 830. In fact, the earliest known reversal of the burden of proof of causation was a
Mississippi Supreme Court case. See Oliver v. Miles, 110 So. 666 (Miss. 1927). This case had identical facts to
Summers v. Tice and Cook v. Lewis, where two hunters negligently fired at one plaintiff.
45. Saul Levmore, Gomorrah to Ybarra and More: Overextraction and the Puzzle of Immoderate Group
Liability, 81 VA. L. REV. 1561, 1562 (1995) (canvassing information-forcing effects that various liability regimes
can have on negligent defendants who withhold information from plaintiffs).
46. [1973] 1 W.L.R. 1 (H.L. 1972).
47. [1951] 1 S.C.R. 830.
48. 199 P.2d 1 (Cal. 1948).
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taken to have foreseen the possibility of damage, who [sic] should bear its
consequences.49
The McGhee case was subsequently used in Canada in five ambiguous cause-in-fact cases
to switch the burden of proof of causation to a defendant.50 Furthermore, the Supreme
Court of Canada reversed the burden of proof of causation to the defendant manufacturer of
substandard breast implants in Hollis v. Dow Corning.51 Justice LaForest relied on Cook v.
Lewis52 to find in favor of the plaintiff. The manufacturers negligence in failing to provide
proper product risk information to physicians had seriously undermined53 the plaintiffs
power to prove that her defective breast implants were the cause of her serious health
problems.
In the United States, causal reversal was also used to sort out difficult ambiguous
cause-in-fact cases. In Haft v. Lone Palm Hotel,54 the defendant hotel owners had to
disprove that their negligence in not providing lifeguards or proper signage at their pool did
not cause the death of a father and young son. Here, the identifying characteristic of
ambiguous cause-in-fact cases, absence of proof as to how the deaths were caused,
prompted Justice Tobriner to determine that:
[T]he shift of the burden of proof in the instant case may be said to rest on a
policy judgment that when there is a substantial probability that a defendants
negligence was a cause of an accident, and when the defendants negligence
makes it impossible, as a practical matter, for plaintiff to prove proximate
causation conclusively, it is more appropriate to hold the defendant liable than
49. McGhee, [1973] 1 W.L.R. at 6.

50. See Nowsco Well Servs. Ltd. v. Canadian Propane Gas and Oil Ltd., [1981] 7 Sask. R. 291 (Sask. C.A.)
(A truck containing highly flammable contents spontaneously exploded while parked near an open flame. The
burden of proof of causation was reversed to the truck driver, who failed to disprove causation.); Rivtow Equip.
Ltd. v. W.J. Watt Constr. Ltd., [1989] 73 Sask. R. 161 (Sask. Q.B.) (A logging machine was mysteriously damaged
by fire while left in the forest unattended. The burden of proof of causation was reversed to the machine operator,
who failed to disprove causation.); Lomax v. Arsenault, [1986] 41 Sask. R. 227 (Sask. Q.B.) (A government
agency diverted water from a private fish pond. An unusually cold winter froze the pond nearly to the bottom, and
the fish stock perished. The question before the court was whether the reduction of the water in the pond caused
the fish to die or whether the fish would have died in any event, with the water at the previous level. The burden
of proof was reversed to the agency, who was able to prove that its negligence was not the cause of the death of the
fish.); E. Kootenay Cmty. Coll. v. Nixon and Browning, [1985] 35 A.C.W.S.2d 29 (B.C.), available at 1985
A.C.W.S.J. Lexis 31069 (A variety of factors greatly slowed construction of a college building, causing an
enormous and unprojected cost-overrun. The burden of proof of causation was reversed to the architects, who
were unable to prove that their tardiness was not the cause-in-fact of the extra costs incurred for construction.);
Letnik v. Toronto (City), [1988] 2 F.C. 399 (Fed. Ct.) (The captain of a ship negligently struck another moored
ship in harbor. Two weeks later, the struck ship mysteriously sank while still moored in harbor. The court
reversed the burden of proof to the negligent captain who was unable to disprove that striking the ship did not
cause it to sink.). It is interesting to note that Canadian academic commentary suggests that Canadian courts postMcGhee regularly reversed the burden of proof of causation to the defendant in torts cases. In fact, that seems to
be a misconception, perhaps created by the notoriety of the above five cases, which did reverse the burden of
proof. It is hard to imagine that a causal tactic used in only five cases within a decade could be characterized as
routine. For example, Mitchell McInnes states that, after McGhee, Canadian courts routinely reversed the burden
of proof once a plaintiff established that a defendant had increased the risk of the injury that actually occurred.
Mitchell McInnes, Causation in Tort Law: A Decade in the Supreme Court of Canada, 63 SASK. L. REV. 445, 447
(2000). Similarly, Allan M. Linden notes that the McGhee innovation was embraced in Canada. ALLAN M.
LINDEN, CANADIAN TORT LAW 107 (6th ed. 1997).
51. [1995] 4 S.C.R. 634, 68186.
52. [1951] 1 S.C.R. 830.
53. [1995] 4 S.C.R. at 683.
54. 478 P.2d 465 (Cal. 1970). Justice Tobriner relied on the reasoning in Summers v. Tice, 199 P.2d 1 (Cal.
1948), in reversing the burden of proof to the defendant.
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to deny an innocent plaintiff recovery, unless the defendant can prove that his
negligence was not a cause of the injury.55
Justice Tobriner relied on Ybarra v. Spanguard,56 where the court used the doctrine of res
ipsa loquitur to, in effect, reverse the burden of proof of causation (as well as all
outstanding elements in the negligence action) to the defendant hospital, requiring it to
disprove causation.57 Like McGhee and Haft, evidence as to the precise cause was missing.
Unlike McGhee and Haft, but similar to Hollis, the disappearance of the evidence of
causation was a direct result of the defendants negligent behavior.
This important difference may have prompted a retraction in courts frequency of
reversing the burden of proof of causation. The British House of Lords overruled the
reversal concept of McGhee in Wilsher v. Essex Area Health Authority.58 This case of
medical negligence involved determining what caused a newborn baby to suffer blindness.
The hospital was negligent in administering too much oxygen to the baby; however, the
complicated birth or possible congenital defects could also have been a cause of the
blindness. The evidence did not clearly point to one definitive cause. The House of Lords
therefore sent the case back for a new trial in order to further examine the cause-in-fact
issue. In demanding retrial of the case, the Lords indicated that McGhee laid down no
new principle of law whatever59 and that Lord Wilberforces reversal idea was a minority
opinion and not to be followed. This statement sent a signal to British courts to cease
reversing the burden of proof in ambiguous cause-in-fact cases.
The reverberation of the Wilsher decision was felt in Canada where the reversal idea
was rejected by the Supreme Court of Canada in Snell v. Farrell.60 Justice Sopinka called
for an end to the use of McGhee as a precedent advocating reversal of the burden of proof
of causation. Instead, Sopinka adopted the inference approach from Wilsher, hoping to
retain the spirit of the flexible McGhee reversal approach without departing from traditional
torts principles. Courts in both Canada and Britain now adopt either one of two
modifications of cause-in-fact doctrine: the inference approach or the increased risk
approach.
In California, the reversal approach was rejected by the California Supreme Court in
Rutherford v. Owens-Illinois, Inc.61 The burden of proof for causation remains with the
plaintiff in cases of cancer allegedly caused by asbestos. The differences between the
Summers v. Tice situation involving multiple tortfeasors and a case involving exposure to
55. Haft v. Lone Palm Hotel, 478 P.2d 465, 476 n.19 (Cal. 1970). But see Smith v. Americania Motor Lodge,
113 Cal. Rptr. 771 (Cal. Ct. App. 1974), which qualified Haft v. Lone Palm Hotel, stating that reversing the burden
of proof was only an option if the plaintiffs themselves were non-negligent. In Smith, also a drowning case like
Haft, there was evidence tending to show that the children who drowned were themselves negligent in entering the
pool, which had proper warning signs and may have been barricaded by a rope. The children were aged ten and
eleven and were capable of reading. The court held that the children were negligent in ignoring printed warnings,
crossing a barricade, and swimming in an unsupervised pool. Id. at 774.
56. 154 P.2d 687 (Cal. 1944).
57. In Part III.C, infra, this paper will outline the conceptual differences between cause-in-fact doctrine and
using res ipsa loquitur to make determinations based on circumstantial evidence.
58. [1988] 1 A.C. 1074 (H.L.). The inference approach as advocated in Wilsher will be discussed below. See
infra Part III.C. It is important to also note that the material increase to risk approach espoused by McGhee was
recently reaffirmed by the House of Lords in Fairchild v. Glenhaven Funeral Servs. Ltd., [2002] 3 W.L.R. 89
(H.L.). Lord Rodger of Earlsferry wrote that Wilsher glossed over McGhee in a way that does not do justice to
the reasoning about causation. Id. at 162.
59. [1988] 1 A.C. at 1090.
60. [1990] 2 S.C.R. 311.
61. 941 P.2d 1203 (Cal. 1997).
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carcinogenic materials were highlighted by the court in determining that reversals of the
burden of proof were not warranted in this type of a case.62 The Restatement (Second) of
Torts still maintains that the burden of proof of causation remains with the plaintiff.63
2.
Criticisms of the Reversal Approach
However, no jurisdiction is without criticism of the reversal approach. There exists a

fundamental problem in transferring causation doctrine from a multiple defendant-single
possible cause of injury situation to a single defendant-multiple possible cause of injury
situation. The shooting cases from which the reversal concept is derived involved fact
patterns where the defendants actual conduct deprived the plaintiff of any ability to prove
cause. The reasoning behind the reversal lies in the belief that the negligent defendants had
greater information about causality than the plaintiffs, who, by virtue of the defendants
actions, had no information.
In the majority of ambiguous cause-in-fact cases, though not all, proof of causation is
not destroyed by the defendants negligence but is merely absent.64 Such was the case in
McGhee where the defendants negligent behavior did not negate the employees ability to
isolate the cause of his dermatitis. Such was also the case in Haft v. Lone Palm Hotel,
where the lack of warning signs did not destroy the plaintiffs ability to determine why the
drownings occurred. These cases go beyond the information forcing purpose of burden
reversal and force the defendant to prove that his breach of duty was not the cause of the
plaintiffs injury.65 There is no informational disadvantage overcome by applying the
reversal approach in these types of cases because neither side has any more causal
information than the other. Therefore, it is questionable whether reversing the burden of
proof to the defendant is any different than merely stating that the defendant is liable for
causing the injury on a breach of the standard of care alone.
Indeed, Fraser and Howarth believe that cases like McGhee use causal language to
address liability concerns based on the defendants breach of the duty of care.66 If the
plaintiff cannot prove causation because causal information does not exist anywhere, the
defendant may be no more able to disprove causation. The reversal notion may therefore
be acting as a disguise for a court wishing to find liability based solely on evidence of a
breach of duty. The causation step is removed by asking the defendant to disprove
something neither he nor anyone else could disprove. Richard Epstein is critical of the
reversal modification of cause-in-fact doctrine. He states that:
P [a plaintiff] must normally prove a case by a preponderance of evidence. If
there is any question of negligence, then P gets to double dip when weak
evidence of causation is piled on top of weak evidence of negligence. Even a
rule that requires P to present the preponderance of evidence on negligence and
causation separately could allow recovery when the chances that Ps full case is
62. However, Joseph H. King, Jr. has advocated the use of the reversal approach for determining cause-infact in pre-existing injury cases. See Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury
Torts Involving Pre-existing Conditions and Future Consequences, 90 YALE L.J. 1353, 1394 (1981).
63. RESTATEMENT (SECOND) OF TORTS 433B(1) (1965) ([T]he burden of proof that the tortious conduct
of the defendant has caused the harm to the plaintiff is upon the plaintiff.).
64. Weinrib notes that in McGhee, the opportunity to prove cause-in-fact was not impaired by the defendants
negligent behavior; rather, proof was absent. Weinrib, A Step Forward, supra note 41, at 526.
65. G.L. Fridman states that the McGhee case in particular goes beyond Cook v. Lewis, [1951] 1 S.C.R. 830,
and forces the defendant to prove he did not cause the plaintiffs injury by his breach of duty. G.L. FRIDMAN,
TORTS 32930 (1990).
66. J.D. Fraser & D.R. Howarth, More Concern for Cause, 4 LEGAL STUD. 131, 14142 (1984).
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267
made out is only just over 25 percent, as when P wins barely by a 50-plus
percent of each issue separately. It is risky to allow P to use a close victory on
the issue of negligence or breach of statutory duty as presumptive evidence of
causation. It is doubtful that any court would adopt this inference on questions
of causation when raised in the context of contributory negligence, so why
adhere to that rule here?67
Even though Epstein challenges the logic of adherence to the reversal approach, the fact
remains that courts in all three jurisdictions have occasionally reversed the burden of proof
in ambiguous cause-in-fact cases.68 Something is prompting them to cloak liability for
substandard care in causal language, even when there can be no gain by forcing
information from a defendant who has no more information than the plaintiff.
When the negligent defendant in an ambiguous cause-in-fact case has an
informational advantage over the plaintiff, reversing the burden of proof of causation may
have the desired effect of forcing that information to come to the surface. Yet when causal
evidence is not being withheld by the defendant but is merely absent for both parties,
reversing the burden of proof has the effect of automatically holding the defendant liable
for causing the injury. Courts appear to be giving the defendant a chance to exonerate
herself while really holding the defendant liable for a breach of standard of care. In other
words, it is a rhetorical tool available for courts to do what they want.69
B.
The Increased Risk Approach
A second method for resolving ambiguous cause-in-fact cases centers around holding
a negligent defendant liable for materially increasing the risk of injury to the plaintiff. This
approach is like the reversal approach in that it is used primarily to compensate an injured
plaintiff despite a lack of causal evidence. Unlike the reversal approach, it has an
information-forcing effect on the defendant. Therefore, it is perhaps more suited to
situations where neither plaintiff nor defendant can muster enough causal evidence to
determine what exactly was the cause of the plaintiffs injury. The increased risk approach
operates as follows: A plaintiff must first establish that the defendant breached the
applicable standard of care. The plaintiff must tender some cause-in-fact evidence, but this
evidence will not be enough to prove on a balance of probabilities that the defendant was
the cause of the injury. Next, the plaintiff must establish that the defendants breach of the
duty of care materially increased the risk of the particular injury. The plaintiff must have
been exposed to that risk and then suffered that particular injury. Despite the fact that the
plaintiff cannot definitively link the negligent increase in risk with the exact cause of injury
that she suffered, courts have held the defendant liable based on materially increasing the
risk for that particular type of injury.
67. RICHARD A. EPSTEIN, TORTS 250 (1999).

68. Curiously, Gillian Demeyere posits that the McGhee reversal approach merely dresses the civil standard
of proof rule as part of a substantive standard. This is akin to the concept that the choice of substantive law for
solving causation problems may be linguistic in nature and not tied to any novel function of the law. See Gillian
Demeyere, The Material Contribution Test: An Immaterial Contribution to Tort Law: A Comment on Briglio v.
Faulkner, 34 U.B.C. L. REV. 317, 330 (2000).
69. With the absence of the causation step, the reversal approachs effect is almost akin to Epsteins regime
of strict liability.
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1.
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The Genesis of the Increased Risk Approach
The present-day increased risk approach in Canada and Britain, like the reversal
approach, seems to have grown out of a previously existing tort doctrine in Britain: the
material contribution to injury doctrine.70 In the United States, by contrast, ruminations of
the increased risk approach appeared as early as 1885.71 It is important to distinguish the
contribution to injury doctrine from the contribution to risk of injury approach as both are
separate and distinct legal tools that are used for different purposes. Courts have
continually blurred the distinctions between the two, and this blurring has resulted in a
confusing web of causal rhetoric in court judgments.
a.
The Increased RiskIncreased Injury Dichotomy in Britain and Canada
In Bonnington Castings v. Wardlaw,72 the British House of Lords determined that a

defendant employer was liable for the injury of its worker. The worker developed lung
disease from the accumulation of noxious dust inhaled from two concurrent sources, one of
which was the employers work site. Although the dust created from the employers
workplace was not itself sufficient to have caused the lung condition suffered by the
plaintiff, the total combination of dust from both sources, one negligent and one nonnegligent, was the cause of the lung disease. The House of Lords held that the employer,
while not responsible for the sole cause of the injury, made a material contribution to the
injury through its negligence and should be liable for its entirety.73 In cases thereafter, a
plaintiff bringing a torts suit could succeed if she could prove that the negligent defendant
made a material contribution to her injury, even though the defendant was not the sole
contributor to the cause of the injury.
The McGhee v. National Coal Board74 case transformed the material contribution to
injury doctrine into a more murky form, confusing material contribution to the plaintiffs
injury with material contribution to the risk of injury. In McGhee, the majority of the
House of Lords broke with the lower appeals court and held that materially contributing to
a plaintiffs injury was a mirror concept with materially contributing to the mere risk of a
plaintiff suffering injury.75 If a plaintiff could prove that a defendants negligence
materially contributed to the plaintiffs injury, the plaintiff could succeed. Yet Lord
Wilberforce, whose judgment sparked the reversal approach, spoke solely of the
70. This test is synonymous with the substantial factor test in the United States.
71. See Reynolds v. Texas and Pac. Ry., 37 La. Ann. 694 (La. 1885), discussed in detail infra Part III.B.1.b.
72. [1956] 2 W.L.R. 615 (H.L.).
73. Id. at 620.
74. [1973] 1 W.L.R. 1 (H.L. 1972).
75. See id. at 8 for the speech of Lord Simon of Glaisdale, in particular, which attempted to synthesize the
increased risk approach with the material contribution to injury test. But see Lord Reid: Nor can I accept the
distinction drawn by the Lord Ordinary between materially increasing the risk that the disease will occur and
making a material contribution to its occurrence. Id. at 5. Lord Salmon stated that [i]n the circumstances of the
present case it seems to me unrealistic and contrary to ordinary common sense to hold that the negligence which
materially increased the risk of injury did not materially contribute to causing the injury. Id. at 1112.
Furthermore, he stated:
In the circumstances of the present case, the possibility of a distinction existing between (a) having
materially increased the risk of contracting the disease, and (b) having materially contributed to
causing the disease may no doubt be a fruitful source of interesting academic discussions between
students of philosophy. Such a distinction is, however, far too unreal to be recognized by the common
law.
Id. at 1213.
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defendants negligence materially increasing the risk of injury to the plaintiff. Liability in
Lord Wilberforces speech was based on the defendant employer materially increasing the
risk that the plaintiff employee would contract dermatitis. Because cause-in-fact was
ambiguous, with two independent possible causes potentially responsible for the harm,
Lord Wilberforce appeared to distinguish the contribution to injury approach, as espoused
in Bonnington Castings, with a new causation approach based on proving material
contribution to risk of injury.76
The difference lay in the fact that in Bonnington Castings, the two causal forces were
acting simultaneously and cumulatively, whereas in McGhee the causal forces were
independent and exclusive of each other. Adding more dust pollution to already existing
dust pollution contributes to the actual injury of the lung disease. There is no causal link
missing here. The defendant may have increased the likelihood that the plaintiff would
develop lung disease, but the cause of the lung disease is known: It is the exposure to dust.
The defendant has merely added to the harm of the already existing injury. This type of
case does not fit the pattern of ambiguous cause-in-fact cases. However, as in McGhee for
example, causing dermatitis by denying employees washing facilities is an operative cause
exclusive from causing dermatitis by some other unknown medical frailty in the plaintiff.
The causes here are independently sufficient to have caused the harm. There is no
cumulative effect. Thus, Lord Wilberforce held that the defendant employers materially
increased the risk of the particular type of injury suffered by the plaintiff worker.77 The
worker was exposed to that risk and suffered that particular injury. Despite having an
insufficient amount of evidence linking the defendants negligence to the plaintiffs actual
injury suffered, Lord Wilberforce found liability based on the defendants negligent and
material increase in risk of one of the possible causes of the injury.78
Since McGhee, courts in Britain and Canada have adopted a variety of inconsistent
interpretations of the concepts muddled by the House of Lords. Some courts have properly
applied the material contribution to injury test, or substantial factor test, as an alternative to
the but for test when faced with two or more simultaneous, successive, and cumulative
causes.79 However, because of the confusingly synonymous use of the words risk and
injury, many courts have repeatedly used the material contribution to risk approach in
deciding ambiguous cause-in-fact cases, while stating in the written judgment that they
were using the material contribution to injury test. The result has been a chaotic body of
law that loses the overall effect of the difference between the two causal doctrines. This
difference is perhaps most clearly stated by Bruce Pardy:
A material contribution [to injury] is not equivalent to a materially increased
risk. A material contribution is part of the cause of the injury. An increased risk
may not have caused any part of the injury, or may have partially contributed, or
may have caused the entire injury by itself.80
76. Id. at 6.
77. McGhee v. Natl Coal Bd., [1973] 1 W.L.R. 1, 7 [H.L. 1972].
78. Id.
79. See, e.g., Athey v. Leonati, [1996] 3 S.C.R. 458 (A plaintiff with pre-existing back condition was hurt in
two successive car accidents.); Corey v. Havener, 65 N.E. 69 (Mass. 1902) (Two motorists sped up behind a horse
and carriage, frightening the horse and causing it to bolt.); Arneil v. Paterson, [1931] 1 A.C. 560 (H.L.) (Two dogs
owned by two different owners became loose and killed some sheep in a farmers flock.).
80. Bruce Pardy, Risk, Cause and Toxic Torts: A Theory for a Standard of Proof, 10 ADVOC. Q. 277, 287
(1989).
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The net effect of confusing the doctrines is that there is a muting of Lord Wilberforces
innovation of holding a defendant liable not for causing the injury but for causing the risk
that an injury would develop. It may be far easier for a plaintiff in an ambiguous cause-infact case to prove cause-in-fact based on an increased risk of injury rather than to establish
multiple, cumulative causes of the injury. The confusingly similar terminology has watered
down the development of this alternative causal solution. Furthermore, it has become
nearly impossible to determine when a court is using the increased risk approach because
the judgment may state a defendants liability is based on contribution to injury and not
contribution to risk of injury, even though the increased risk approach is adopted
implicitly.81
The overt increased risk approach is, however, not without its active proponents in the
judiciary. It has been applied in a variety of ambiguous cause-in-fact cases.82 The
Manitoba Court of Appeal recently held a physician to be the cause of a newborn babys
malformity.83 The court found that the physician materially increased the risk of injury to
the unborn child by negligently continuing to prescribe to the mother a drug harmful to
developing fetuses.84 The plaintiff patient could not definitively prove when the harm
suffered by the developing child manifested itself and whether that manifestation coincided
with the time she began taking the harmful drug prescribed by the physician.85 The cause
of the babys malformation could have either been the drug or some other independent
exclusive cause occurring either before or after the start of the prescription. The judge
determined that, while the plaintiff could not link the defendant doctors negligence with
the actual cause of the malformity, the doctors negligence materially increased the risk that
that particular type of fetal malformity would occur.86 That was enough to hold the doctor
liable for the injury to the baby. Other Canadian cases continue to rely on the increased
risk approach as espoused in McGhee, despite the recent movement toward the inference
principle marked by the 1990 decision, Snell v. Farrell.87
81. Courts in all three jurisdictions continually confuse the increased risk approach with the material
contribution to injury, or substantial factor, test when assessing cause in ambiguous cause-in-fact cases. See, e.g.,
Swanson Estate v. Canada, [1991] 80 D.L.R.4th 741 (Fed. C.A.) (holding a government transportation agency to
have materially contributed to the cause of the injury of the plaintiff when his plane crashed). The agency allowed
the uninspected plane to take off, knowing that the plane was unsafe for air travel. Despite the holding, it appears
that the agency really materially contributed to the risk of injury and not to the actual injury itself. Also note the
confusing language in Evers v. Dollinger, 471 A.2d 405, 415 (N.J. 1984) (holding the defendant physicians failure
to make a diagnosis and properly treat the patient increased the risk of recurrence or of distant spread of plaintiffs
cancer, and that such increased risk was a substantial factor in producing the condition from which plaintiff
currently suffers). The judge here combined both the increased risk approach and substantial factor test in one
sentence.
82. See, e.g., Chow (Litig. Guardian of) v. Wellesley Hosp., [1999] 86 A.C.W.S.3d 322 (Ont. Gen. Div.),
available at 1999 A.C.W.S.J. Lexis 45318 (holding that physicians who ignored the warning signals of premature
birth increased the risk of the baby being born with birth defects); Briffett v. Gander & Dist. Hosp. Bd., [1992] 103
Nfld. & P.E.I.R. 271 (Nfld. Tr. Div.), affd, [1996] 137 Nfld. & P.E.I.R. 271 (Nfld. C.A.) (holding that leaving a
man having a heart attack in the hospital emergency room hallway untreated and lying on a stretcher increased the
risk that he would perish hours later, which he did); Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978) (holding the
failure to diagnose and treat signs of cancer to have increased risk of death by cancer).
83. Webster v. Chapman, [1997] 126 Man. R. 2d 13 (Man. C.A.).
84. Id. at 9293.
85. Id. at 8889.
86. Id. at 93.
87. [1990] 2 S.C.R. 311. For Canadian cases relying on McGhees increased risk approach, see, e.g., Audet
(Guardian ad Litem of) v. Bates, [1998] 78 A.C.W.S.3d 406 (B.C.), available at 1998 A.C.W.S.J. Lexis 81941
(holding that the physicians negligence in pinching a newborns umbilical cord materially increased the risk of
brain damage to the child); Stroud v. Gen. Hosp. Corp & Pollett, [1993] 110 Nfld. & P.E.I.R. 22 (Nfld. Tr. Div.)
(holding that a hospital negligently allowing a patient to shave himself materially increased the risk that the patient
would die of infection from shaving wounds); Doern v. Phillips Estate, [1995] 2 B.C.L.R.3d 349 (B.C.), affd,
[1997] 43 B.C.L.R.3d 53 (B.C.C.A.) (conducting a reckless police chase held to have materially increased the risk
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271
The most resounding acceptance of the increased risk approach has come from the
British House of Lords in 2002 in Fairchild v. Glenhaven Funeral Services Ltd.88 The
Lords exhaustive and comparative analysis of causation doctrines in a variety of
international jurisdictions is bound to influence the further refinement of this difficult area
of the law. While the five speeches that make up the decision are different in form, their
thrust is common: A plaintiff can successfully prove cause-in-fact by proving the defendant
materially increased the risk of injury and the plaintiff then suffered that particular injury.
The case involved exposure to cancer-causing asbestos. Themes of risk exposure and
difficulty in proving causation from a scientific standpoint permeated the speeches. It can
be expected that this decision, which extensively cites cases from Canada and the United
States, will reverberate throughout much of the common law world.
b.
The Increased Risk Approach in the United States
In the United States, the genesis of the increased risk approach appears to have
occurred much earlier than in Britain or Canada. In the 1885 case of Reynolds v. Texas and
Pacific Railway,89 a 250-pound woman was urged to hurry down unlit stairs leading to the
defendants railway ramp. She slipped and fell, causing injury to herself. She had to prove
that it was the defendants unlit stairs that was the cause of her fall, not her own
carelessness. The court found for the plaintiff and held that where the negligence of the
defendant greatly multiplies the chances of accident to the plaintiff, and is of a character
naturally leading to its occurrence, the mere possibility that it might have happened without
the negligence is not sufficient to break the chain of cause and effect between the
negligence and the injury.90 In other words, the defendants negligence materially
increased the risk that the plaintiff would fall down the stairs.
Following Reynolds, U.S. courts did not apply the increased risk approach with any
fervor until, coincidentally, after 1973around the time of McGhees release in Britain.
The mid- to late eighties exhibits the greatest number of cases invoking an increased risk
approach in both Canada and the United States. In Canada, this phenomenon is attributed
to the introduction of McGhee as a causation precedent; in the United States it is unclear
from where its popularity stemmed. One can conjecture, however, that the flurry of
controversy and academic debate about Lord Wilberforces McGhee innovation may
perhaps have crept into American judicial thinking.91
The result is a resurgence of the increased risk approach, particularly in the area of
medical negligence. Physicians failures to treat and diagnose patients often became
characterized in the pattern of ambiguous cause-in-fact cases. Two or more competing
independent possible causes left courts stymied as to where to attribute cause. Applying
the increased risk approach allowed a court the ability to compensate the plaintiff when the
that the plaintiff would attempt to avoid the police and accidentally steer his automobile into another oncoming
vehicle); Givskud v. Kavanaugh, [1994] 147 N.B.R.2d 1 (N.B. Tr. Div.) (failing to inspect crop seeds for disease
held to be a material increase in the risk that many farm crops would be infected by the diseased seeds).
88. [2002] 3 W.L.R. 89 (H.L.).
89. 37 La. Ann. 694 (La. 1885).
90. Id. at 698.
91. See, e.g., ROBERT E. KEETON, LEGAL CAUSE IN THE LAW OF TORTS 910 (1963) (discussing his theory
formulating the Risk Rule, which holds that a defendant should be held liable for the harm caused within the
scope of risks created by his negligent behavior). Keetons theory may have assisted in priming U.S. academia for
the ensuing discussions surrounding the increased risk approach. See, e.g., Wright, Causation in Tort Law, supra
note 1, at 176365; see generally Christopher H. Schroeder, Corrective Justice and Liability for Increasing Risks,
37 UCLA L. REV. 439 (1990) [hereinafter Schroeder, Liability for Increasing Risks].
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evidence could not establish cause-in-fact under the but for or substantial factor tests.
For example, in Evers v. Dollinger,92 the defendant doctors failure to properly diagnose
and treat the plaintiff patient increased the risk of recurrence or of distant spread of
plaintiffs cancer.93 A malfunctioning electrocardiogram unit and the subsequent
unavailability of the physician prompted the court in Hamil v. Bashline94 to hold that this
failure to properly diagnose and treat increased the risk of harm to the patient, who was
suffering a heart attack at the time. One constant in American increased risk approach
cases of medical negligence is that courts continually rely on the ambiguous language in the
1966 decision of Hicks v. United States.95 The court there stated that if there was any
substantial possibility of survival and the defendant has destroyed it, he is answerable.96
Perhaps the Hicks language operates similarly to Lord Wilberforces judgment in McGhee
in that both are invoked when a court wishes to relax traditional cause-in-fact standards in
order to allow a plaintiff to prove causation.
This was the reasoning of the California Supreme Court in Rutherford v. OwensIllinois, Inc.97 in holding that exposure to carcinogenic asbestos was a substantial factor in
increasing the risk of developing cancer. Because it was a near impossibility to prove
whether or not the defendants particular asbestos filaments actually caused the plaintiffs
cancer, the plaintiff was required to prove only that the defendants product increased the
risk of developing cancer.
2.
Criticisms of the Increased Risk Approach
One difficulty with the increased risk approach stems from the fact that a court is
finding a defendant liable for a plaintiffs injury by causing a risk that the plaintiffs injury
might occur. The missing link between negligent behavior and causality is bridged by
deeming an increased risk sufficient as proof of cause-in-fact when other causal evidence is
unavailable.98 Like the reversal approach, the increased risk approach injects a great deal
of discretionary power in the judicial system. Indeed, Gerald Robertson argues that the
increased risk approach favors the plaintiff in every single application.99 Furthermore, he
notes that the defendant will then always have the burden of disproving causation. Once it
has been established that the defendant fell below the standard of care, Robertson states that
a plaintiff then only has to prove the existence of an actual injury that could likely have
resulted from the negligence of the defendant. If evidence of precise cause-in-fact is
missing, as it is in most ambiguous cause-in-fact cases, the court will automatically
determine the defendant to be the cause under the increased risk approach because it is
obvious that the defendants negligent behavior increased the risk of injury for the plaintiff.
Every breach of the duty of care, by its very nature, materially increases the risk of injury to
the plaintiff. This increase in risk, in turn, forces the defendant to disprove causation.
92. 471 A.2d 405 (N.J. 1984). See, e.g., Scafidi v. Seiler, 574 A.2d 398, 40305 (1990) (citing Dollinger and
a host of cases that examine whether or not the defendants negligence increased the risk of harm to a plaintiff who
was already suffering from some pre-existing condition).
93. Evers, 471 A.2d at 415.
94. 392 A.2d 1280 (1978).
95. 368 F.2d 626 (4th Cir. 1966).
96. Id. at 632.
97. 941 P.2d 1203 (Cal. 1997).
98. This is different than treating risk increase as an injury itself, a concept which will be discussed infra in
Part III.B.3.b.
99. Gerald Robertson, Overcoming the Causation Hurdle in Informed Consent Cases: The Principle in
McGhee v. N.C.B., 22 U.W. ONT. L. REV. 75 (1984).
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273
When juxtaposed with the reversal approach, Robertsons analysis is enlightening in

two aspects. First, it appears that both the reversal approach and the increased risk
approach allow courts to modify traditional causal principles to benefit a plaintiff in
ambiguous cause-in-fact cases. Most importantly, both approaches lead to a nearly
automatic finding of liability on the part of the defendant. There appears to be no practical
difference between reversing the burden of proof of causation to the defendant and saying
the defendant caused the plaintiffs injury by materially increasing the risk of injury. The
defendant cannot escape either presumption.
Second, what Robertsons analysis fails to stress is the fact that the increased risk
approach systematically documents a courts reasonings for causal determinations. A
defendants liability does not stem from just any increased risk; rather, the risk created must
be of a type likely to cause the particular injury of the plaintiff. Furthermore, the plaintiff
must have been sufficiently exposed to the risk. Unlike the reversal approach, a court must
go through a series of logical steps to establish that the material increase of risk did indeed
exist and does indeed make the plaintiffs resultant injury more likely to have occurred.
Reversing the burden of proof of causation to the defendant in an ambiguous cause-in-fact
case does not allow for this rationalization of parting from traditional tort principles.100
Although the differences between both approaches may be in name only, with the increased
risk approach a court is forced to turn its mind to whether or not there is a likely causal
nexus between the defendants negligent risk creation and the plaintiffs injury.
3.
Alternatives to the Increased Risk Approach
There exist two theoretical alternatives to the increased risk approach that have
garnered some attention with torts scholars but have yet to be considered by courts. The
first involves proving cause-in-fact through increased risk by using statistical probabilities,
or probabilistic evidence. The second involves treating an increased risk of injury as a new
kind of compensable injury in and of itself. Each is detailed here in order to indicate the
theoretical framework surrounding the increased risk approach.
a.
Probabilistic Evidence, Efficiency, and Increased Risk
Using statistical probabilities as an aid in cause-in-fact analysis seems like a tempting

solution when dealing with ambiguous cause-in-fact cases. If no one party can definitively
prove or disprove causation, why not reach for a numerical calculation of whether or not
the plaintiffs particular injury is a probable result of the defendants negligence?
Normative efficiency theorists have argued for a more empirical approach to causal
determinations which would involve utilizing probabilistic evidence to calculate trends in
increases in risk of injury.101 Positivist efficiency theorists argue that courts are already
implicitly using probabilistic evidence in making causal determinations.102 If the increase
100. However, as has been discussed, the reversal approach does seem to be more effective in situations
where the defendant holds an informational advantage over the plaintiff in regards to causation.
101. See, e.g., Shavell, An Analysis of Causation, supra note 37; Shavell, Uncertainty Over Causation, supra
note 37. See also the works of other scholars who are not associated with the law and economics school of
thought: John G. Fleming, Probabilistic Causation in Tort Law, 68 CAN. BAR REV. 661 (1989); John G. Fleming,
Probabilistic Causation in Tort Law: A Postscript, 70 CAN. BAR REV. 136 (1991) [hereinafter Fleming,
Probabalistic Causation: A Postscript]; Wright, Clarifying the Concepts, supra note 29, at 106777.
102. See, e.g., William M. Landes & Richard A. Posner, Causation in Tort Law: An Economic Approach 12
J. LEGAL STUD. 109, 12932 (1983) [hereinafter Landes & Posner, Causation in Tort Law].
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is beyond a certain threshold, it may be seen to be more administratively efficient to hold

the defendant liable than allow the defendant to continue to behave inefficiently.103 This
would create optimal incentives for minimizing risky behavior when it is efficient to do so.
Probabilistic evidence of causal tendencies could help courts determine at what level the
increased risk of injury is tolerable and at what level it should be sanctioned. For example,
it may be theoretically possible to predict that not providing any washing facilities for
workers in a brick kiln results in nine out of ten workers contracting dermatitis. The risk of
those same workers developing dermatitis from other causal sources may be one in sixty.
In that case, the owner of a brick kiln who fails to install washing facilities should be held
liable for increasing the risk of injury to his workers if a worker contracts dermatitis. If,
however, it can be determined that only one out of one thousand workers will contract
dermatitis by not having washing facilities at work, it may not be efficient to hold the brick
kiln owner liable because chances are the owner is not the probable cause of the injury.
Courts and corrective justice theorists, in contrast, have resisted paying any attention
to probabilistic causal determinations for a variety of reasons.104 The reaction against the
idea stems largely from the fact that statistical probabilities are only helpful in measuring
the general trend of a cross-section of causal situations. Courts prefer to concentrate on the
more immediate situation of a specific plaintiff, a specific injury, and a specific
defendant.105 Stating that a certain event causes a certain injury ninety-nine percent of the
time does not assist a court in determining what happened in the situation before it. Courts
limit themselves to only particularistic, ex post causal probabilities.106 In other words,
courts are concerned only with what happened, not what was likely to happen, or what
would likely happen if the event repeated itself in the future.
Both positivist and normative corrective justice theorists are concerned with the moral
significance of the unique relationship between plaintiff and defendant. They also see the
tort process as one which redresses the imbalance between a single plaintiff and defendant.
Corrective justice theorists emphasize the particular facts at hand because the theory is not
concerned with the general trends of harm but the moral ramifications of harm in specific
circumstances. All toxic torts, for example, are not seen in the same way according to
corrective justice theorists. A greater degree of callous recklessness necessitates a greater
perception of wrongdoing which, in turn, warrants a greater reason to award compensation
to the plaintiff to make him or her whole. Different plaintiffs have different moral
relationships depending upon the tortious circumstances. Statistical probabilities do not
assist in prescribing the accurate characterization of the moral significance in each
individually unique tort.
103. See, e.g., Shavell, An Analysis of Causation, supra note 37, at 48788; Landes & Posner, Causation in
Tort Law, supra note 102, at 13233; see Shavell, Uncertainty Over Causation, supra note 37 at 60406.
104. See, e.g., Weinrib, Special Morality, supra note 41, at 40406; Klar, Fault and Policy, supra note 41, at
4041; Wright, Clarifying the Concepts, supra note 29, at 105466.
105. Interestingly, Glenn Shafer states that the only probabilities that can be taken to be causally related are
empirically valid probabilities close to zero or one. Glenn Shafer, Causality and Responsibility, 22 CARDOZO L.
REV. 1811, 1834 (2001).
106. Richard Wright describes four types of causal evidence available to courts. Particularistic evidence is
evidence of a particular occasion that makes real some aspect of a possible causal generalization. Ex post causal
probabilities are case-specific probabilities. Ex ante causal probabilities are abstract probabilities dealing with a
certain class of happenings and are independent of particularistic evidence. Naked statistics are simple reports of
accidental groupings, such as how many blue taxicabs and how many yellow taxicabs go through an intersection
on average in a given day. Wright states that courts only take particularistic evidence and sometimes ex post
causal probabilities into account when answering causal questions. Ex ante causal probabilities, while useful for
causal prediction, do not help account for what happened in the case. Naked statistics, Wright notes, are useless.
Wright, Clarifying the Concepts, supra note 29, at 105051.
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Yet, when a court reaches for the increased risk approach to determine ambiguous
cause-in-fact scenarios, it is actually moving closer to the positivist efficiency model, which
asserts that courts are implicitly using probabilistic causation.107 Holding a defendant liable
for cause-in-fact by stating he materially increased the risk of injury seems to be the same
as stating he increased the probability that the plaintiff would suffer the injury. Because
ambiguous cause-in-fact cases exhibit two independent competing causes, a court applying
the increased risk approach is really looking to probabilities of what it thinks happened.
Causal evidence is absent, and examining the risks created by the defendant moves the
cause-in-fact analysis from one of past facts to one of likely conjectures. A court shifts
from ex post causal probabilities of what specifically happened in this particular case to ex
ante causal probabilities of what would generally happen in these types of cases. In doing
so, the court compensates the plaintiff based on the likelihood that the defendants
negligence caused the plaintiffs injury.
The rhetoric of the court parallels the application of probabilistic evidence without the
court even knowing it is doing so. A deception is created, allowing the court to operate
under the assumption that it is using only particularistic ex post causal probabilities. For
example, a court says to a defendant, You, defendant, increased the risk that this injury
occurred, and we find you liable for causing the injury. Implicit in that statement is the
courts internal thought that you, defendant, increased the risk that this injury occurred,
and we know that that increased risk can likely cause this type of injury; therefore, we find
you liable for causing the injury. The increased risk approach is therefore a disguised
version of using probabilistic thinking to make causal determinations when precise
evidence of cause-in-fact is nonexistent. This approach should therefore be favorable to
both positivist and normative efficiency theorists as it operates more closely to their model
of basing liability on balancing increased risk of injury with efficient behavior.
b.
Increased Risk of Injury as a Compensable Injury
A recent outgrowth of the academic movement toward using probabilistic evidence is

the idea that causal analysis should be simplified by imposing liability for risk-based
damages whenever a defendant is negligent. An increased risk would be treated as a new
compensable injury for which a defendant would be liable. Exposure to risk of harm would
be considered a harm itself. In its most basic form, the proposal works by using ex post
and ex ante probabilistic evidence to award damages based on the proportion of risk created
by the defendant.108 The award would be discounted to the extent that the plaintiffs injury
was likely caused by risk factors other than the defendants negligence.109 Proponents of
107. This debate over the utilization of increased risk as a mechanism for liability findings has recently been
revived. Mark Geistfeld argues that, although the mere existence of factual uncertainty should not warrant the
shifting of the burden of proof of causation, a plaintiff can adduce epidemiological proof which must identify an
increase in risk sufficient to establish tortious conduct by the defendant. Mark Geistfeld, Scientific Uncertainty
and Causation in Tort Law, 54 VAND. L. REV. 1011, 1015 (2001). In a response to Glenn Shafers arguments,
supra note 105, Melannie Leslie notes that the entire tort system is built to tolerate uncertainties. See Melannie B.
Leslie, Liability for Increased Risk of Harm: A Lawyers Response to Professor Shafer, 22 CARDOZO L. REV.
1835, 183637 (2001). The increased risk approach may be suitable for toxic tort and products liability cases but
is not necessary for the everyday injury case. See id. at 184143.
108. See, e.g., Pardy, supra note 80. Wright, Clarifying the Concepts, supra note 29, at 1068; Schroeder,
Liability for Increasing Risks, supra note 91, at 15457; Christopher H. Schroeder, Corrective Justice, Liability for
Risks, and Tort Law, 38 UCLA L. REV. 143, 159 (1990); Glenn Shafer, Causality and Responsibility, 22 CARDOZO
L. REV. 1811, 1834 (2001).
109. Almost like the reductions for jurisdictions that have comparative negligence or contributory
negligence.
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this refinement of the increased risk approach argue that traditional causation doctrine is
inefficient and should be dispensed with because it allows for only a bipolar, winner-takeall system.110 Classifying risk exposure as injury would allow a court more latitude to
award damages. Damages would be based on a continuum of risk and harm, not on an allor-nothing model, as it currently is. The result is an increased distribution of compensation.
More plaintiffs would be compensated and more defendants found liable, but the damage
awards would correspondingly be reduced as existing risk factors other than the
defendants negligence would discount the award.
This method of proving cause-in-fact has received no attention from courts in any
jurisdiction thus far. Critics of compensating plaintiffs based on risk exposure alone argue
that the administrative costs of calculating this risk exposure are astronomically high. The
idea may perhaps be workable in long-latency torts where there is prolonged exposure to
risk and the damage awards are high.111 However, in most everyday negligence cases,
especially ambiguous cause-in-fact cases where causal evidence is lacking, the required
probabilistic evidence is nearly impossible to obtain and would be expensive to calculate.
The distribution effect created by holding defendants liable on a continuum of risk
exposure would benefit more plaintiffs by spreading compensation more evenly across
litigants, but the compensation would be less, perhaps even unsatisfactory for many who
really were injured by the defendants negligence but were also exposed to other potential
risk factors. Their damage awards would be whittled away for the mere fact that they were
unfortuitously proximate to another possible source of harm. The normative corrective
justice goals of redressing the moral imbalance for wrongdoing may not be fully met under
this new torts doctrine. Once a defendant has been proven to be negligent, he must
automatically be liable for some amount of damages as cause is attributed proportionally to
various risk factors. It does not matter whether the defendant actually caused the harm to
the plaintiff. Rather, he is held liable because his behavior could have statistically been a
potential cause. Curiously enough, this model may not be attractive for normative
efficiency theorists as well. There exists a greater risk of over-deterrence and underdeterrence when every tort suit is at the mercy of probabilistic causal evidence. The effect
on activity levels of players in the tort system may thus end up being anything but efficient.
The loss of the traditional causal nexus between the defendants negligence and the
plaintiffs injury results in a regime where a breach of the standard of care is the touchstone
of liability. Perhaps this regime may actually increase the risk of over-deterrence of any
potentially risky behavior.112
These criticisms of the risk as harm theory are magnified when one considers
ambiguous cause-in-fact cases. Because causal evidence is missing, and because there exist
two or more independent but sufficient possible causes, the net effect of the risk as harm
theory seems to be a splitting of the difference approach to causal situations. Rather than
choosing one independent possible cause over another, a court would statistically split the
difference between the two causes, effectively canceling out compensation for the plaintiff.
This approach is a backward step to what was the catalyst for the departure from traditional
causal principles in ambiguous cause-in-fact cases: a courts desire to pursue plaintiffsensitive normative considerations through cause-in-fact determinations.
110. See Schroeder, Liability for Increasing Risks, supra note 91, at 47071.
111. See Kenneth W. Simons, Corrective Justice and Liability for Risk Creation: A Comment, 38 UCLA L.
REV. 113, 114 (1990).
112. Many efficiency theorists are concerned with shaping causal rules so as to avoid over-deterrence of
socially valuable behavior. See, e.g., Shavell, An Analysis of Causation, supra note 37, at 484; Shavell,
Uncertainty Over Causation, supra note 37, at 588.
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The Inference Approach
The third and final approach to resolving ambiguous cause-in-fact cases involves a
court inferring causation based on a reasonable assumption of the facts of the case. Of all
three approaches, this is the most discretionary and unpredictable. When faced with an
ambiguous cause-in-fact case, a court may choose to infer causation on the part of the
defendant when direct causal evidence is lacking but when a court feels there is a strong
likelihood that the defendants negligence was the cause of the plaintiffs injury.
1.
Res Ipsa Loquitur and the Inference Approach
The inference approach, while operating in a sometimes markedly similar fashion to

the doctrine of res ipsa loquitur, is used for a completely different causal scenario: the
ambiguous cause-in-fact case. Res ipsa loquitur allows a court to make reasonable
inferences of negligence based on circumstantial evidence so that the mere fact that an
accident occurred becomes evidence of liability.113 Those inferences may include
inferences of cause-in-fact. The application of res ipsa loquitur requires that three factors
be present in the fact situation for an inference of negligence to be made. First, the plaintiff
must prove that the event that caused the plaintiffs injury was one that ordinarily does not
occur in the absence of negligence. Second, the plaintiff must prove that the
instrumentality of harm was under the complete control of the defendant, in order to link
the harm with the defendants negligence alone. And third, the plaintiff must prove that the
cause of the accident was unknown and not due to any voluntary action or contribution on
the part of the plaintiff. Plaintiffs attempting to utilize res ipsa loquitur are not required to
prove that the defendants negligence was the sole possible explanation for their injury.114
They must, however, show that the possibility of the defendants negligence as cause-infact of the injury outweighs the possibilities of the other potential causes being the causein-fact. Res ipsa loquitur, however, is never applicable to an ambiguous cause-in-fact case.
Ambiguous cause-in-fact cases, by their very nature, never exhibit the first and most
important of the three factors necessary for an inference based on circumstantial evidence.
The reason lies in the fact that ambiguous cause-in-fact cases are those where there are two
independently sufficient possible causes at work, one of which involves the negligence of
the defendant and one of which is the result of some other factor. Therefore, an equally
likely possibility exists that the harm may have been caused by an event other than the
defendants negligence. Multiple sufficient causal explanations in ambiguous cause-in-fact
cases defeat the purpose of evaluating circumstantial evidence with res ipsa loquitur
because neither potential cause outweighs the other in terms of likelihood of the cause
being the actual cause-in-fact. Furthermore, the inference approach requires at least some
evidence demonstrating that the defendants negligence could be a potential cause of the
plaintiffs injury. That evidence may not be solely circumstantial in nature. Res ipsa
loquitur is designed to assist a plaintiff in proving a case where no evidence of any possible
cause can be found beyond merely circumstantial evidence.
113. The concept originated in the British decision Byrne v. Boadle, 159 Eng. Rep. 299 (Ex. Ch. 1863),
where a sack of flour fell from a bakery window onto an unsuspecting plaintiff below the window. The court held
that sacks of flour do not usually fall from windows without the assistance of negligent behavior. Id. at 301.
Therefore, despite the fact that the plaintiff had no evidence that any member of the bakery negligently threw the
sack out the window, the mere fact that the accident happened was sufficient to hold the bakery liable for the
injury. Id.
114. See, e.g., McGonigal v. Gearhart Indus. Inc., 788 F.2d 321 (5th Cir. 1986).
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Courts have refused to apply res ipsa loquitur in cases where there exists more than
one causal explanation that does not allude to the defendants negligence. For example, in
Walston v. Lambersten,115 two crab fishermen set out in their boat and never returned. The
appellants family argued for the use of res ipsa loquitur in establishing the cause of the
disappearance. They asserted that the boat may have sunk due to the weight of the ships
catch. Both the District Court and the Court of Appeals refused to use res ipsa loquitur
because the sea itself contains many hazards, and an inference of liability of the shipowner
for the mysterious loss of his vessel should not be lightly drawn.116 In particular, the court
cited the notion that the boat could have struck one of the many water-soaked logs floating
in those particular waters.117
The Supreme Court of Canada has made a complete retreat from res ipsa loquitur,
abolishing the doctrine in Fontaine v. Loewen Estate.118 Two hunters were found dead
inside their badly damaged truck, which had sunk to the bottom of a river bed. The
defendant hunters body was found behind the steering wheel with his seatbelt still in place.
It was established that the area in which the hunters were driving experienced very heavy
rain and gusting winds at about the time the truck went off the road.119 It was also
determined that the vehicle was speeding. Justice Major held that this circumstantial
evidence did not support an inference of negligence.120 Furthermore, he called for an end
to the use of res ipsa loquitur in Canada, stating that circumstantial evidence should be
weighed during the process of evaluating direct evidence.121
The inference approach to ambiguous cause-in-fact cases is therefore designed to
operate akin to res ipsa loquitur, but only in causal situations where the doctrine does not
apply.122 In some cases, like Ybarra v. Spanguard,123 creative applications of res ipsa
loquitur do appear to have the same effect as the reversal and inference approaches in
holding the negligence of a defendant to be a cause-in-fact of the plaintiffs injuries.
Unlike res ipsa loquitur, the inference approach may be applied in situations where there is
one or more equally sufficient and non-negligent possible causes of the plaintiffs injury.
The approach is obviously not restricted by the second res ipsa loquitur condition, as the
alternate cause of the injury will not be one under the defendants exclusive control.
2.
The Genesis of the Inference Approach
Most ambiguous cause-in-fact cases are resolved using the inference approach, which
has supplanted the reversal approach and increased risk approach in the last few decades.
In Britain, McGhee v. National Coal Board124 was overruled by Wilsher v. Essex Area
Health Authority,125 putting an end to the reversal approach and curbing adherence to the
increased risk approach. Wilsher was the ambiguous cause-in-fact case that involved
multiple independently sufficient possible causes of blindness to a newborn child. It could
115. 349 F.2d 660 (9th Cir. 1965).
116. Id. at 662.
117. Id. at 662 n.1.
118. [1998] 1 S.C.R. 424.
119. Id. at 427.
120. Id. at 437.
121. Id. at 435.
122. Allan Linden notes that the inferential reasoning in the inference approach of Snell v. Farrell, [1990] 2
S.C.R. 311, is not dissimilar to res ipsa loquitur analysis. ALLAN M. LINDEN, CANADIAN TORT LAW 108 (6th
ed. 1997).
123. 154 P.2d 687 (Cal. 1944).
124. [1973] 1 W.L.R. 1 (H.L. 1972).
125. [1988] 2 W.L.R. 557 (H.L.).
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279
not be determined on the evidence whether or not the babys blindness had been caused by
hospital negligence in providing too much oxygen to the infant during the mothers labor.
In that case, the House of Lords held that Lord Wilberforces opinion in McGhee laid
down no new principle of law whatsoever126 and was to be considered as a minority
opinion. The Lords read the remaining speeches in McGhee as not advocating a reversal of
the burden of proof of causation to the defendant, but rather as inferring causation based on
common sense. Lord Bridge in Wilsher noted that McGhee adopted a robust and
pragmatic approach to the undisputed primary facts of the case127 and ordered that there
should be a retrial of the causation issue.
After Wilsher, British and Canadian courts ceased using both the reversal and
increased risk approaches advocated in McGhee. The Supreme Court of Canada echoed
Wilshers dismissal of McGhee two years later in Snell v. Farrell128 and adopted the
inference approach as the standard causal principle to be used in Canada. In Snell, an
elderly patients blindness could have been caused by either a negligent surgical operation
or a conglomeration of health problems unrelated to the operation. Sufficient evidence
proving on a balance of probabilities either the surgery or the health problems as cause-infact did not exist. The Supreme Court, led by Justice Sopinka, rejected the reversal
approach,129 adopting Lord Bridges words from Wilsher. Courts were to use traditional
causation principles in a common sense fashion: Very little affirmative evidence130
adduced by the plaintiff could allow a court to take a robust and pragmatic approach131 to
the facts and make a common sense inference of causation.
The addition of the House of Lords decision in Fairchild v. Glenhaven Funeral
Services132 may, however, decrease reliance on the inference approach in Canada and
Britain. The speeches of Lord Bingham of Cornhill, Lord Hoffman, and Lord Rodger of
Earlsferry emphasized the utility of the increased risk approach. Lord Rodger went so far
as to note that, in an ambiguous cause-in-fact case like McGhee, it is something of a
fiction to bridge the evidential gap with an inference.133 Only the speech of Lord Hutton
reasoned that the McGhee case stood for the principle that an inference could be drawn that
a defendants breach of the duty of care was the cause of a plaintiffs injury.134 Thus, at
126. Id. at 569. Lord Bridge stated:

On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or
plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the
majority concluded that it was a legitimate inference of fact that the defenders negligence had
materially contributed to the pursuers injury. The decision, in my opinion, is of no greater
significance than that and to attempt to extract from it some esoteric principle which in some way
modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer
must discharge once he has established a relevant breach of duty is a fruitless one.
Id. He also said that Lord Wilberforces reasoning must be regarded as expressing a minority opinion. Id. at
567.
127. Id. at 569.
128. [1990] 2 S.C.R. 311.
129. Id. Justice Sopinka stated: If I were convinced that defendants who have a substantial connection to
the injury were escaping liability because plaintiffs cannot prove causation under currently applied principles, I
would not hesitate to adopt one of these alternatives. In my opinion, however, the principles relating to causation
are adequate to the task. Id. at 32627.
130. Id. at 328.
131. Id. at 330.
132. [2002] 3 W.L.R. 89 (H.L.).
133. Id. at 163.
134. Id. at 14344.
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least in Britain, the inference approach may potentially be supplanted by the increased risk
approach in certain kinds of cases.
In the United States, there has been no marked preference of the inference approach
over the other two approaches to ambiguous cause-in-fact cases. Rather, U.S. courts appear
to be more flexible in adopting one of the three approaches. The inference approach has,
for example, been utilized when plaintiffs suffer an injury as a result of the defendants
negligence and then mysteriously develop another medical condition at the anatomical site
of the injury. It is nearly impossible to prove whether or not the negligence which resulted
in the first injury caused the development of the subsequent condition. In Kramer Service
v. Wilkings,135 the plaintiffs scalp was badly cut from glass falling from a negligently
repaired door overhang in a hotel. The wound did not heal, and the plaintiff developed skin
cancer at the wound site. Conflicting expert medical evidence prompted the court to infer
that the negligent disrepair of the defendants hotel doorway was the cause-in-fact of the
cancer. In Daly v. Bergstedt,136 a woman fell in an unmarked wet aisle in a grocery store.
She injured the left side of her chest and later developed breast cancer at the same site of
injury. The court inferred that the cause-in-fact of the cancer was the grocery stores
negligence in not warning its customers of the hazard of falling in the aisles. Inferences of
cause-in-fact have also been considered in ambiguous cause-in-fact cases when a plaintiff
with a heart condition fell down stairs in disrepair,137 when a plaintiff is found dead at an
unmarked open elevator shaft,138 or when a train lacking rear lights was blamed as the
cause of death of a young plaintiff found adjacent to railway tracks.139 In one case, the
inference approach was notably utilized to determine the cause of typhoid fever when a city
worker negligently mixed the unsanitary fire department water supply with the drinking
water supply and local residents simultaneously faced an outbreak of typhoid fever.140
Perhaps the most famous example of the inference approach in the United States is the
bug-bite case, Gallick v. Baltimore & O.R.R.141 A railroad company allowed a stagnant
pool of water to remain near the train tracks where employees regularly worked. The pool
held such unsavory things as dead and decaying rats and pigeons. The stench attracted
insects that would become diseased from the rotting material and would fly about the
tracks. The plaintiff was standing near this pool and was severely bitten on the leg by an
insect. He suffered a serious infection at the site of injury. There was no definitive
evidence as to where the insect came from, although it likely flew from the pool. The
Supreme Court held that it did not matter whether or not there were other possible
competing causal explanations for the bugs origin since it was satisfactory to allow a jury
to infer causation if it so wished.
3.
Criticisms of the Inference Approach
It appears that the inference approach is used by all three jurisdictions when a court
does not know what happened to cause a plaintiffs injury, but has a strong sense that the
defendants negligent behavior must have been the cause. The problem with the approach
is that it is completely up to the court to characterize the inference as it sees fit. There
135. 186 So. 625 (Miss. 1939).
136. 126 N.W.2d 242 (Minn. 1964).
137. Ingersoll v. Liberty Bank of Buffalo, 14 N.E.2d 828 (N.Y. 1938).
138. McCoy v. Quadrangle Dev. Corp., 470 A.2d 1256 (D.C. 1983).
139. Puckhaber v. S. Pac. Ry. Co., 64 P. 480 (Cal. 1901).
140. Stubbs v. City of Rochester, 124 N.E. 137 (N.Y. 1919). There were at least nine competing potential
causes for the typhoid fever, one of which was the negligent mixing of water supplies. Id. at 138.
141. 372 U.S. 108 (1963).
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exists no objective guidelines as to how or when to infer causation. The only guidelines
are, as Justice Sopinka in Snell v. Farrell puts it, to use common sense.142 In many
instances, this may be an acceptable way to proceed if a courts common sense is somehow
objective and shared with most people.143
There are some ambiguous cause-in-fact cases that exhibit fact patterns that seem to
beg a court to hold the defendants negligence is the cause-in-fact of the plaintiffs injury.
Even though causal evidence is lacking, it appears obvious that the defendants negligence
must have had a causal role. For example, there are ambiguous cause-in-fact cases in both
the United States and Canada involving construction workers smoking on the rooftop of the
plaintiffs building while repairing the roof with flammable roofing tar.144 After the
workers leave, the building mysteriously burns down. The courts held the defendants liable
for the fire, even though there was no definitive proof of the cause-in-fact of the fire. Few
would dispute a courts reasoning here in inferring causation. Yet, if the same workers
were not smoking but eating peanuts, inferring causation based on their behavior becomes
more questionable.145 Thus, the inference approach is heavily dependent upon the way the
evidence paints the negligent behavior of the defendants. If the evidence points to a rather
innocent causal connection, like eating peanuts, rationalizing an inference of causation
becomes difficult. Yet if the evidence points to a more wrongful causal connection, like
smoking cigarettes on a roof covered in flammable roofing tar, it seems more likely that a
defendant could and should be held to be the cause of the accident. The defendant should
have known better.
The inference approach, therefore, operates in a similar fashion to the reversal
approach. Indeed, many scholars argue that the two are identical in practical effect.146
Reversing the burden of proof of causation to the defendant results in the defendants being
liable for causation on the part of the defendant. This is the same result as inferring
causation to the defendant in the face of insufficient evidence that does not establish the
defendants negligence as a prima facie cause-in-fact. Both approaches provide a wide
latitude for the exercise of judicial discretion. Both are also quite unpredictable at times.
Unlike the increased risk approach, there is little opportunity for a court to enter into
detailed reasoning behind holding a defendant liable for cause-in-fact through a nontraditional application of causal principles. In ambiguous cause-in-fact cases, inferring
causation may be problematic because the lack of articulated reasoning behind the
departure from traditional cause-in-fact tests reduces the precedential value of a written
court decision. No guidance is given for future courts facing these difficult cases because
each inferred causal finding turns solely on the courts characterization of the particular
evidence at hand. Normative efficiency goals may be most difficult to pursue with the
142. [1990] 2 S.C.R. 311, 317.
143. Lord Hoffman in Fairchild raises this exact point in the context of an analysis of ambiguous cause-infact cases like Snell v. Farrell, stating that there is sometimes a tendency to appeal to common sense in order to
avoid having to explain ones reasons. Fairchild v. Glenhaven Funeral Servs. Ltd., [2002] 3 W.L.R. 89, 124
(H.L.). Lord Rodger of Earlsferry also distanced himself from Justice Sopinka in Snell v. Farrells inference
concept because the entire case was about the fact that the medical expert witnesses themselves would not make
the inference which the court, in turn, did. Id. at 163.
144. See, e.g., Emery v. Tilo Roofing Co., 185 A. 409 (N.H. 1937); 378096 Ontario Ltd. v. Bonds Dcor
Ltd., [1998] 78 A.C.W.S.3d 1249 (Ont. C.A.), available at 1998 A.C.W.S.J. LEXIS 82735 (upholding [1995] 56
A.C.W.S.3d 227 (Ont. Gen. Div.), available at 1995 A.C.W.S.J. LEXIS 49944).
145. For further explanation of this example, see JOHN W. WADE ET AL., PROSSER, WADE AND SCHWARTZS
CASES AND MATERIALS ON TORTS 261 (9th ed. 1994).
146. See, e.g., FLEMING, THE LAW OF TORTS, supra note 1, at 227; Fleming, Probabalistic Causation: A
Postscript, supra note 101, at 139; KLAR, TORT LAW, supra note 16, at 32728; ALLAN M. LINDEN, CANADIAN
TORT LAW 10708 (6th ed. 1997).
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inference approach because of the inherent lack of objective empiricism. A positivist

efficiency explanation of causation is also elusive when courts utilize the inference
approach without explaining the reasoning behind their findings.147 The goal of efficiency
in judicial lawmaking must, therefore, be inferred by the result. Efficiency theorists cannot
point to any written evidence of a court furthering efficiency by departing from traditional
causation doctrine.
If a court were able to choose the most efficient party for whom to infer causation, the
inference approach would allow the freedom to distribute in order to foster wealth
maximization. But the approach itself offers no assistance in determining which party
should bear the liability for cause-in-fact. It is more of a license to allow a court to deem
cause where it sees fit. There is no guarantee that the most efficient result is, or will be,
reached. Therefore, although the inference approach mirrors the reversal approach in its
overall reduction of the burden of proof of causation for the plaintiff, the inference
approach is captive to the same unpredictable deference to policy goals operating beneath
the surface of the torts system. Courts are using the approach to do what they want.148
IV. A NEW APPROACH TO AMBIGUOUS CAUSE-IN-FACT CASES

The three judicially created modifications to traditional cause-in-fact doctrine allow a
greater degree of flexibility in dealing with ambiguous cause-in-fact cases. A judge can
reach for one of the three approaches to adjust the causal doctrine to compensate for a lack
of causal evidence. As has been shown, use of an approach most often coincides with
favoring the plaintiffs position, whether the underlying normative purpose is for wealth
maximization or for restoring moral responsibility. The unique nature of ambiguous causein-fact cases demands a relaxed approach to traditional but for and substantial factor tests
because, without any modifications, plaintiffs will continually lose these cases. However,
each of the three current approaches exhibits some flaws. They can be prone to
unpredictability and inefficiency while being completely captive to unarticulated judicial
discretion. The advantages of plaintiffs persuading courts to use one of the three
approaches are obscured due to the complexity and volatility of the historical application of
the approaches to ambiguous cause-in-fact cases. Furthermore, common law precedents
cannot develop in a meaningful way as the coherence of this body of law is haphazard at
best.
What is needed is a more structured and practical methodology for dealing with the
unique nature of ambiguous cause-in-fact cases. This methodology should incorporate the
beneficial qualities of all three approaches while avoiding potential shortcomings. It should
also keep at the forefront the redressing of the evidentiary imbalance that is unique to
ambiguous cause-in-fact cases. Finally, it should retain the flexibility at the heart of the
three approaches, which would give courts freedom to pursue normative goals without the
expense of predictability149 and efficiency.
147. Although, of course, a positivist explanation of a causation decision would explain that the court seeks
to achieve the most efficient result whether or not it articulates what it is doing.
148. Hence, by silence, courts play into the hands of both efficiency and corrective justice theorists in a
positivist sense.
149. It is, of course, trite to argue that predictability is a valued asset in any development of substantive law.
In this particular framework of the law of cause-in-fact, both efficiency theorists and corrective justice theorists
may agree that predictability is valued. From a behavioral adjustment aspect (whether that adjustment is for a
moral nature or a movement to greater efficiency), predictability is a bedrock in the common law. Not only are the
parties in a tort suit affected by the presence or absence of predictability, but so too are all the players in the tort
system. The importance of predictability from an insurance underwriting perspective cannot be overlooked.
2003]
A.
283
Structured Causation
Where the but for and substantial factor tests fail in ambiguous cause-in-fact cases,
a fresh causal doctrine unfettered by previous precedent may assist plaintiffs who cannot
prove cause-in-fact on traditional grounds but nevertheless prove cause-in-fact in a
structured manner. This new approach, called structured causation,150 could operate as
follows. A court must first determine that the case before it fits the pattern of an ambiguous
cause-in-fact case. There must exist at least two independent possible causes sufficient to
have caused the plaintiffs injury. Next, the plaintiff must be able to prove on a balance of
probabilities that the defendant did breach the applicable standard of care. There must be
some tangible evidence that links the defendants negligent behavior with a possible cause
of the injury. This evidence would not be sufficient to prove cause-in-fact on a balance of
probabilities, but it would be enough to suggest some causal relationship.
B.
Reversing the Burden of Proof of Causation to Force Information
If a court can determine that the negligent defendant is in an informationally

advantageous position to the plaintiff, the court should order the burden of causation to be
reversed to the defendant in order to force the information from the negligent defendant.
This would be most obvious in cases where it can be discerned that the defendants
withholding of information robbed the plaintiff of an opportunity to prove cause-in-fact.
Also, where it is clear that the defendant knew or should have known that his information,
if available to the plaintiff, could have avoided the injury, the burden of proof of causation
should be reversed to the defendant. These situations would most often arise in cases
involving manufacturers of products or physicians and hospital staff. It could also operate
in cases where the possible evidence for causation was destroyed as a result of the
defendants negligent action.151 The court must be able to have some certainty that the
reversal of the burden of proof should rightly force some information from the defendant.
Even if there exists no information to be gleaned from this process, the fact that the
defendants behavior robbed the plaintiff of the opportunity for proof should prompt the
reversal.
150. The term constructive causation was first coined by Mitchell McInnes, who noted that the tendency of
Canadian courts to adjust causal doctrine may lead to a complete overhaul of the concept of cause-in-fact. Mitchell
McInnes, Causation in Tort Law: A Decade in the Supreme Court of Canada, 63 SASK. L. REV. 445, 45657
(2000). This author, while grateful to Professor McInnes for suggesting the notion of constructive causation as far
back as 1997, prefers the term structured causation to signify the added elements of a logical sequence to the
analysis, as discussed below. Constructive causation appears to candidly admit that there may be some
fudging going on in applying the substantive law of causation to the facts at hand. This is what will hopefully be
avoided in the application of structured causation.
151. As was the case in Nuttall v. City of Thunder Bay, [2001] 17 M.P.L.R.3d 290 (Ont. Super. Ct.), affd,
[2002] 115 A.C.W.S.3d 503 (Ont. C.A.), available at 2002 A.C.W.S.J. LEXIS 5576, where the inference approach
was used to infer causation, based on Snell v. Farrell. Here, a city negligently allowed a city sidewalk to fall into
disrepair, then tore up the very sidewalk section after the plaintiff commenced her slip and fall lawsuit but before
she had a chance to test the sidewalk surface. Id. at 290. A reversal of the burden of proof of causation in this
case, after the plaintiff adduced enough evidence to connect her fall with the possibility of the negligently
maintained sidewalk, would perhaps have functioned to force the city to disclose its own records and tests of the
sidewalk surface, which it refused to produce at trial.
284
C.
[VOL. 38:249
Materially Increasing the Risk of Injury as Proof of Cause-in-Fact
If a court cannot determine that the negligent defendants withholding of causal

information has robbed the plaintiff of proof of causation, the court should adopt a version
of the increased risk approach. A court should hold the negligent defendant responsible for
cause-in-fact if the plaintiff can fully prove the following:
(1)
there is a problem with evidentiary proof of causation because there exist

two independent, equally sufficient possible causes of the injury;
(2)
the defendant breached the applicable standard of care;
(3)
there is some evidence that points to the defendants breach of the standard
of care as a possible cause of the injury, but clearly not enough to prove
causation on a balance of probabilities;
(4)
the defendants breach caused a material increase in the risk of a particular

type of injury;
(5)
the plaintiff was exposed to that risk; and
(6)
the plaintiff suffered that particular type of injury.
If the above six items can be proven by the plaintiff, the court should hold that the
defendant caused the plaintiffs injury.152 In essence, this approach asks: Is one of the
more-likely-than-not causes the increased risk behavior of the defendant? A court should
be forever mindful to fully articulate its reasons why the plaintiff was able to prove the six
elements of structured causation. Note that this new approach does not treat risk as a
compensable harm but only restricts itself to deeming that an already negligent defendant
caused a plaintiffs injury by materially increasing the risk of that particular injury. The
defendants negligence does not have to contribute to the actual injury, but must contribute
to the risk that the injury would have occurred. This flexible and structured causation
doctrine should better serve all parties in a tort suit by adopting a more predictable,
contextual methodology for dealing with ambiguous cause-in-fact cases. Most importantly,
structured causation is workable in the British, American, and Canadian jurisdictions
because it can logically be enmeshed with the way the common law has developed around
ambiguous cause-in-fact cases.
V. EVALUATING STRUCTURED CAUSATION

A.
Structured Causation Compatible with Corrective Justice View
Structured causation actually reifies the operation of the tort system as seen through a
corrective justice framework. Corrective justice surmises that the tort system redresses the
imbalance created when one party causes harm to the other party.153 Not only is the injured
plaintiff made whole again, insofar as money damages can do, but the negligent defendant
is punished for his wrongdoing by being forced to restore the plaintiff. This implicit
152. Fairchild v. Glenhaven Funeral Servs. Ltd., [2002] 3 W.L.R. 89. The causation tests developed by Lord
Hoffman, Lord Bingham of Cornhill, and Lord Rodger of Earlsferry somewhat parallel the test for structured
causation. The integral element of each of the Lords proposed tests is the adoption of the increased risk approach,
inclusive of the prevalence of the six above-mentioned factors. Id. at 17071.
153. See Weinrib, Special Morality, supra note 41, at 40910.
2003]
285
morality in the tort system centers around the intimate relationship between the defendant
and the plaintiff.
Therefore, causation for corrective justice theorists is perhaps the most vital
component of the torts action. A defendant must have caused injury to the plaintiff in order
to be held morally responsible. In addition, a plaintiff must have suffered harm at the hands
of the defendant in order to be compensated. Corrective justice theorists are at odds with
efficiency theorists about the role that cause-in-fact plays in a tort suit. Cause cannot be
placed on a statistical continuum but must either be present or absent. Furthermore,
exposure to risk is not seen as a loss; there must be a factual and normative loss suffered by
the plaintiff.154 It is for these reasons that both normative and positivist corrective justice
theorists are against using probabilistic evidence and mere risk creation for determining
cause-in-fact.
Positivist corrective justice theorists surmise that the departure from traditional torts
principles in ambiguous cause-in-fact cases stems from a courts desire to award damages
based predominantly on the perceived morality of the defendants negligent conduct.
When a plaintiff is denied compensation under traditional but for or substantial factor
cause-in-fact analysis, a court may still redress the imbalance between the plaintiff and
defendant by opting for one of the three alternative approaches to cause-in-fact. The
addition of structured causation in ambiguous cause-in-fact cases only strengthens the
theory that, when there is a perceived moral wrong in a tort suit, courts reach for a
substantive law tool to right that wrong. Structured causation is merely a more refined tool
that is more workable in difficult causation situations. Most important, structured causation
does not depart from the common law but merely builds on it. The adoption of structured
causation would be a natural outgrowth of acknowledging that courts adopt a more flexible
tool in difficult causation cases.
From a normative standpoint, the formal use of structured causation would give courts
a method for redressing the moral imbalance in tort suits where the negligence of the
defendant will go unpunished and a plaintiff uncompensated merely because the causal
evidence does not reach beyond a balance of probabilities. Using structured causation, a
court could make explicit its moral undercurrents by offering a more lucid explanation of
why it is deciding a certain case a certain way. The stages of a structured causation
analysis allow a court to consider the moral and ethical significance of important elements
in the causation analysis. The first step to structured causation, reversing the burden of
proof when there is a perceived informational advantage for the defendant, guides a court
in attributing moral significance to the hiding of information. For keeping information
from the plaintiff, a defendant is punished through a reversal of the burden of proof of
cause-in-fact. If no informational advantage is perceived in the case, the court would then
adopt the second stage of structured causation and assess the defendants material
contribution to the risk of injury. Because the causal test stresses the relative amount of
risk created, the negligent behavior involved, the proximity and exposure to the
wrongdoing, and the link between the actual injury suffered and the risk of that actual
injury, the test comes closer than any of the three approaches to preserving the restorative
nature corrective justice theory believes is in the tort system.
Incorporating the material contribution to risk of injury component in the second
stage of the structured causation analysis does not, on its face, increase a defendants
chances of being punished for behavior which does not have any moral blameworthiness
attached. In ambiguous cause-in-fact cases, at least one possible and plausible causal
154. Id. at 408.
286
[VOL. 38:249
scenario must potentially be caused by the defendants negligence. By tying the

defendants proven breach of the duty of care to the increase of the particularized risk that
could have caused the plaintiffs injury, all the while in the face of some but not quite
enough causal evidence, the defendant is, at the very least, held accountable for the breach
of the duty of care. As corrective justice theorist Ernest Weinrib reassures, the law prefers
a 50 per cent. chance of doing justice to a certainty of doing injustice.155 By not applying
structured causation in ambiguous cause-in-fact cases, the certainty of injustice exists
because a defendant who breached the standard of care and contributed to the global risk
factors associated with the plaintiffs injury escapes being held accountable for that
behavior.
Therefore, if the normative goal of the tort system is indeed to restore a plaintiff to
moral wholeness, structured causation comes closest to structuring causal analysis around a
frank acknowledgement of pursuing that goal while holding a defendant liable in suitable
ambiguous cause-in-fact cases.
B.
Structured Causation Compatible with Efficiency Theory View
Structured causation also helps further concerns of both positivist and normative
efficiency theorists by streamlining the causal analysis in ambiguous cause-in-fact cases to
allow for more predictable, and perhaps more efficient, judicial decisions. In this regard,
the causation step in the tort regime is not minimized for the sake of efficiency, as many
legal economists argue it should be.156 Rather, it is expanded with some added limits on
judicial discretion that do not exist in the present three approaches to ambiguous cause-infact cases.
As mentioned above in the corrective justice evaluation of structured causation, it is
important to remember that the introduction of structured causation in any jurisdiction does
not require a restructuring of any common law concepts. There are cases in all three
jurisdictions that espouse various versions of structured causation in using the inference
approach, the material increase in risk approach, or the reversal approach. Any legal
authority mentioned in this article can easily be used as a precedent for the adoption of
structured causation. Structured causation merely orders the often implicit reasoning in the
courts by demanding explicit answers to fundamental causal questions in ambiguous causein-fact scenarios. Therefore, the adoption of structured causation in no way alters the
positivist view of the law operating to achieve efficient results. The addition of structured
causation will, in fact, add to the efficiency.
Normatively, if the goal of the legal system is to strive for efficiency, structured
causation is an important step in the right direction for a key reason: Ambiguous cause-infact cases are undoubtedly the most administratively costly cases to process through the tort
system. They require the most evidence, the most court time, the greatest use of expert
witnesses, and their uncertainty allows for no easy answers throughout the causal analysis.
As a result, the conflicting case law that has developed around ambiguous cause-in-fact
cases, with its often tacit and discretionary causal reasoning, is adding to the inefficiency of
the system.
155. Weinrib, A Step Forward, supra note 41, at 524.

156. See, e.g., Shavell, An Analysis of Causation, supra note 37; Shavell, Uncertainty Over Causation, supra
note 37, at 484; LANDES & POSNER, ECONOMIC STRUCTURE, supra note 37. For criticisms of normative efficiency
analysis of cause-in-fact, see John Borgo, Causal Paradigms in Tort Law, 8 J. LEGAL STUD. 419, 45355 (1979)
and Weinrib, Special Morality, supra note 41, at 40708.
2003]
287
A cost-effective adjustment to the system at the stage where lack of precedential

guidance allows for inefficiency is therefore an attractive prescription. The first step in
structured causation, that of deciding whether or not to reverse the burden of proof of
causation to the defendant, fits with the economic motive behind information forcing. The
party who can provide causal information at the least cost will bear the burden of producing
that information. If it is the plaintiff, the plaintiff bears the burden of proving causation. If
the defendant is withholding information and can more cost-effectively provide it to the
plaintiff, the burden of proving causation will shift to the defendant. This informationforcing effect reduces administrative costs of gathering and interpreting causal information
by shifting those costs to the party who is most able to defray the expense.157
The second step in structured causation, that of assessing whether or not a defendants
negligence materially increased the risk of injury to the plaintiff, should also further the
goals of efficiency. Because a defendants negligent behavior will most often be deemed to
have increased the risk of injury to the plaintiff, structured causation acts akin to a regime
of strict liability. This is an acceptable way to structure the liability regime because the
costs of discovering potentially absent causal information are so high in ambiguous causein-fact cases. If a defendants negligent behavior indeed pushes these costs high enough to
make causal information more costly to provide than it would be to merely compensate the
plaintiff outright, then holding the defendant liable for materially increasing the risk of
injury to the plaintiff appropriately regulates activity levels of the defendant. A defendant
will be deterred from acting in a risky manner that would bring about an ambiguous causein-fact situation.158 In most ambiguous cause-in-fact cases where neither defendant nor
plaintiff has destroyed the means of causal proof, but where the defendants behavior has
created the increased risk of injury, the defendant is usually the least cost avoider who
should rightly be held liable for the negligence. It is the defendants care level that matters
and a liability rule mirroring strict liability would help to minimize accident costs by
reducing the incentives for a defendant to engage in risky behavior where the costs of
gathering and interpreting causal information outweigh the costs of compensating the
plaintiff. Furthermore, this approach also provides an insurance effect to the plaintiff,
funded by the defendant, who has the greatest control over the risk of harm.
Structured causation is also somewhat compatible with the notion of creating ex ante
incentives for wealth maximization. Unlike the three current approaches to ambiguous
cause-in-fact cases, the increased predictability of structured causation could act as a
catalyst for a more structured incentive system. The reversal, increased risk, and inference
approaches allow generous amounts of judicial discretion to creep into a courts analysis.
A courts plaintiff-sensitive policy goals are not articulated in written judgments. But the
doctrinal framework of structured causation forces a court to account for why it is making a
causal judgment in a certain way. Efficiency considerations regarding the relative cost of
providing causal information are incorporated into the design of structured causation.
Therefore, administrative costs can be evaluated more completely through the step-by-step
analysis of the relationship between increased risk and injury contained in the second part
of structured causation. The party most able to bear the costs of the injury is more likely to
be found liable if a court can assess the informational elements and the risk elements of
each respective party.
157. The advantages of information forcing in sculpting liability rules is a cornerstone of the law and
economics movement. Recently, the design of mechanisms for information forcing has received much attention.
For an ideal example of how information forcing in the design of torts liability regimes operates, see, for example,
Levmore, supra note 45, at 156263.
158. See Shavell, An Analysis of Causation, supra note 37, at 47677.
288
[VOL. 38:249
Ambiguous cause-in-fact cases can be resolved under structured causation by

accounting for both the ex ante and ex post considerations about causality, alleviating the
criticisms leveled by corrective justice theorists that efficiency theory restricts itself to an
inadequate ex post causal analysis only. The ex ante concerns are dealt with in the first
prong of the test where informational advantages are assessed. The second prong of the
test combines a detailed analysis of what did happen to increase risk of injury with the
flexibility to determine what most likely would have happened had this accident repeated
itself in the future. The but for and substantial factor tests do not incorporate this
forward-looking opportunity but are restricted only to ex ante thinking.
Curiously enough, the addition of structured causation would not result in overdeterrence of useful behavior. First, rarity of occurrence of ambiguous cause-in-fact cases
in the tort system would restrict the use of structured causation to only those difficult causal
scenarios where there exist two independent, equally sufficient causal explanations.
Second, the fact that structured causation requires initial proof that the defendant breached
the standard of care, followed by at least some evidence tying cause-in-fact to that breach,
increases the chances that the defendant is indeed liable for the accident. Finally, requiring
proof that the defendants behavior increased the risk of one of the global risk factors that
possibly could have caused the plaintiffs injury, and the plaintiff was exposed to that risk,
ultimately poses an efficiency question of the bearing of the cost burden of the accident. In
its final practical effect, structured causation is akin to Shavells concept of reducing the
importance of causal analysis in favor of the duty of care analysis.159 By semantically
focusing on the cause-in-fact stage, the question really becomes one of risk allocation based
on an established breach of the duty of care. The efficient answer to the cause-in-fact
question may, ironically, follow the comment of corrective justice theorist Weinrib, stated
above, that the law prefers a fifty-percent chance of achieving efficiency than a certainty of
behaving inefficiently.
The greatest efficiency lies in the increased predictability of the outcomes of
ambiguous cause-in-fact cases when structured causation is applied. Potential defendants
can adjust not only care levels but activity levels well before a tort suit, thereby avoiding
this costly administrative step. There would be deterrence of actions that are likely to
destroy causal proof or add to the global risk factors of injuries to others. Insurance
underwriters can better evaluate risks in difficult causal scenarios by evaluating the inherent
riskiness in insuring a defendant whose behavior may regularly involve him or her in an
ambiguous cause-in-fact situation. And, of course, lawyers and judges would have a
practical tool to assess the outcomes of potentially difficult and almost always high-stakes
ambiguous cause-in-fact tort suits. Structured causation therefore furthers normative
efficiency goals by providing a doctrine which can be tailored to foster maximum
allocation of available wealth.
VI. CONCLUSION
By using structured causation, courts in the United States, Britain, and Canada can
begin to develop a cohesive and context-sensitive approach to ambiguous cause-in-fact
cases. The three judicial modifications to traditional cause-in-fact doctrine can be
consolidated into one workable approach. This approach eliminates many of the theoretical
and practical flaws of each approach while still allowing courts to determine cause in
ambiguous cause-in-fact cases, which is the fundamental purpose behind modifying causein-fact principles in the first place. Structured causation can coexist with the two major
159. Id. at 482.
2003]
289
positivist accounts of the tort system. It functions equally well in a system that is operating
efficiently or is restoring balances between citizens. Structured causation also furthers the
normative goals of the major theoretical frameworks of tort law. The new methodology is
better tailored to promote efficiency or to redress moral imbalances.
Structured causation can assist courts in determining cause-in-fact in ambiguous cases
where two or more independently sufficient possible causes exist. Because one of those
possible causes is the negligence of a defendant, a court must balance the desire to
compensate the injured plaintiff with the cautionary recognition that the negligent
defendant may not in fact be the actual cause of the injury. Structured causation thus
equips courts to more competently answer the dreaded causal question of what
happened?
290
[VOL. 38:249

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Ambiguous Cause-in-Fact and Structured

Causation: A Multi-Jurisdictional Approach

THE LANDSCAPE OF CAUSE-IN-FACT DOCTRINE ....................................................... 251

MODIFICATIONS TO TRADITIONAL CAUSE-IN-FACT DOCTRINE ................................. 262

TEXAS INTERNATIONAL LAW JOURNAL

Res Ipsa Loquitur and the Inference Approach.......................................... 277

A NEW APPROACH TO AMBIGUOUS CAUSE-IN-FACT CASES ..................................... 282

EVALUATING STRUCTURED CAUSATION ................................................................... 284

CONCLUSION ............................................................................................................. 288

AMBIGUOUS CAUSE-IN-FACT AND STRUCTURED CAUSATION

THE LANDSCAPE OF CAUSE-IN-FACT DOCTRINE

TEXAS INTERNATIONAL LAW JOURNAL

The Evolution of Cause-in-Fact Doctrine

The But For Test

The majority of common law cause-in-fact inquiries involve a courts application of

AMBIGUOUS CAUSE-IN-FACT AND STRUCTURED CAUSATION

factual circumstances. A plaintiff in a negligence action must prove on a balance of

The Substantial Factor or Material Contribution to Injury Test

TEXAS INTERNATIONAL LAW JOURNAL

Ambiguous Cause-in-Fact Cases

AMBIGUOUS CAUSE-IN-FACT AND STRUCTURED CAUSATION

TEXAS INTERNATIONAL LAW JOURNAL

Modifications to Traditional Cause-in-Fact Tests

Ambiguous cause-in-fact cases have spawned three judicial modifications to

The Reversal Approach: Reversing the Burden of Proof of Causation to the

AMBIGUOUS CAUSE-IN-FACT AND STRUCTURED CAUSATION

The second modification to traditional cause-in-fact principles first appeared in the

TEXAS INTERNATIONAL LAW JOURNAL

The third approach to ambiguous cause-in-fact cases, as demonstrated in cases like

The Importance of Ambiguous Cause-in-Fact Cases: Hints of Policy and Theory

Before discussing in detail the three approaches to ambiguous cause-in-fact cases, it is

Policy Drives Modifications to Traditional Cause-in-Fact Principles

AMBIGUOUS CAUSE-IN-FACT AND STRUCTURED CAUSATION

TEXAS INTERNATIONAL LAW JOURNAL

The Inherent Indeterminacy of Cause-in-Fact Cases

AMBIGUOUS CAUSE-IN-FACT AND STRUCTURED CAUSATION

Theory Behind the Policy of Cause-in-Fact

TEXAS INTERNATIONAL LAW JOURNAL

MODIFICATIONS TO TRADITIONAL CAUSE-IN-FACT DOCTRINE

The Reversal Approach

AMBIGUOUS CAUSE-IN-FACT AND STRUCTURED CAUSATION

The Genesis of the Reversal Approach

TEXAS INTERNATIONAL LAW JOURNAL

49. McGhee, [1973] 1 W.L.R. at 6.

AMBIGUOUS CAUSE-IN-FACT AND STRUCTURED CAUSATION

TEXAS INTERNATIONAL LAW JOURNAL

Criticisms of the Reversal Approach

However, no jurisdiction is without criticism of the reversal approach. There exists a

AMBIGUOUS CAUSE-IN-FACT AND STRUCTURED CAUSATION

The Increased Risk Approach

67. RICHARD A. EPSTEIN, TORTS 250 (1999).

TEXAS INTERNATIONAL LAW JOURNAL

The Genesis of the Increased Risk Approach

The Increased RiskIncreased Injury Dichotomy in Britain and Canada

In Bonnington Castings v. Wardlaw,72 the British House of Lords determined that a

AMBIGUOUS CAUSE-IN-FACT AND STRUCTURED CAUSATION

TEXAS INTERNATIONAL LAW JOURNAL

AMBIGUOUS CAUSE-IN-FACT AND STRUCTURED CAUSATION

The Increased Risk Approach in the United States

TEXAS INTERNATIONAL LAW JOURNAL

Criticisms of the Increased Risk Approach

AMBIGUOUS CAUSE-IN-FACT AND STRUCTURED CAUSATION

When juxtaposed with the reversal approach, Robertsons analysis is enlightening in

Alternatives to the Increased Risk Approach