Assessing the Causal Link Duncan Fairgrieve

DOI:10.1093/acprof:oso/9780199258055.003.0006

Abstract and Keywords

This chapter aims to clarify the attitude of the French and English courts toward state liability in tort with a comparative survey of prevailing tests of causation in each jurisdiction. The English courts adopted an approach of causal inquiry into the tort of negligence divided into a two-stage analysis — preliminary filter of factual causation using the causa sine qua non theory (but-for test) and the question of legal cause based on reasonable forseeability. On the other hand, the French courts asserted a unitary conception of causation — a nuanced approach which relies on various causal theories to address the problems of assessing liability. However, with both approaches, there is a concern for multiple causes such as third parties, contributory fault of the injured party, and independent natural events, as well as the matter of unlawful administrative acts.

Keywords:   state liability, English courts, factual causation, legal cause, French courts, tort, third parties, contributory fault, natural events, administrative acts

1. Introduction

Amongst the plethora of difficult legal issues common to the major legal systems, questions of causation are infamously contentious and complex.¹ State liability in tort is no exception to this trend. The aim of this chapter is to clarify the attitude of the French and English courts to this problem. A survey will be made of the prevailing tests of causation and how similar causal difficulties are tackled in each jurisdiction. We shall see that notions of causation have been used to restrict state liability in French administrative law.

2. An Overview of the Tests of Causation in English and French Law

2.1. English Law

In English law, an essential element of most torts is that the defendant's act caused the claimant's loss.² The issue of causation is generally broached by means of a two-stage analysis.³ Initially, there is the test of cause in fact. Secondly there arises the question of legal cause. Much of the debate on causation has occurred in relation to the tort of negligence,⁴ but note will also be made of how this issue has been resolved in respect of other torts.

The preliminary filter of factual causation in English tort law is the causa sine qua non theory, otherwise known as the but-for test. According to this test, those events without which the resultant harm would not have occurred are to be regarded as conditions of the harm.⁵ The claimant (p.166) must show on the balance of probabilities that ‘but for’ the act of the defendant, loss or injury would not have been sustained.⁶ The English courts operate on an all-or-nothing basis.⁷ Full recovery will be made for loss which was more likely than not caused by the defendant; a probability less than that will exclude liability entirely.⁸ Although the but-for test is a useful filter, it is inadequate as a touchstone for causation as it is inherently over-inclusive.⁹ Moreover, there are occasions when the results dictated by the test are unhelpful, for instance in the case of multiple sufficient causes.¹⁰

Once the claimant has shown that the act was a condition of the harm, the court will assess whether it is to be regarded in law as a cause. It is at this stage that many of the policy issues are taken into account.¹¹ This question of determining whether the damage is not too remote a consequence of the defendant's wrongdoing is a challenging one. In English law, the test of directness prevailed for a while. In Re Polemis, it was held that recovery could be made for all the direct consequences of the impugned act.¹² This was so even if these consequences could not have been reasonably anticipated.

However, the directness test was rejected in The Wagon Mound (No 1), in preference to an alternative approach based on reasonable foreseeability.¹³ The test that has emerged is that only if the kind of damage sustained was a reasonably foreseeable consequence will the defendant be liable for the full extent of that loss. The limitations of this test have been offset by various qualifications. If the kind of damage was foreseeable, then the precise chain of events by which it occurs need not have been.¹⁴ Nor does (p.167) the extent of that kind of damage have to be foreseeable.¹⁵ There are indications that the courts have tended to interpret the meaning of ‘foreseeable’ rather generously.¹⁶ Finally, of particular significance is the manner in which the courts interpret the meaning of ‘kind of damage’. As far as physical injury to the person is concerned, the approach would seem to be liberal. As long as some kind of injury to the person was foreseeable, including psychiatric harm,¹⁷ recovery can be made for its full extent.¹⁸ On the other hand, the courts would seem to be less accommodating for property damage and pure economic loss. It would seem that a specific subcategory of these kinds of damage would have to be foreseeable by the reasonable man, such as property damage by fire rather than by pollution.¹⁹

The scope of the reasonable foreseeability test for remoteness has been subject to some debate.²⁰ It is clear that the tort of negligence is subject to this test,²¹ and reasonable foreseeability has also been applied to other torts such as breach of statutory duty,²² with some exceptions.²³

A final point should be made. The dominance of the duty concept in negligence and the slippery nature of causation have meant that there has been a tendency to apply causal considerations in other parts of the liability equation. The examination of causal elements at the duty level is particularly apparent in cases concerning psychiatric harm²⁴ and actions (p.168) against supervisory authorities.²⁵ The English courts have by no means a monopoly on this form of judicial reasoning.²⁶ Reference will be made to this surrogate use of causation where appropriate.