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Causation in the Law

Published online by Cambridge University Press:  16 January 2009

Glanville Williams
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Extract

Hart and Honoré's book is a thorough and scholarly study of the concept of causation in Anglo-American law. Closely reasoned, with full reference to the literature and a considerable treatment of Continental theories, it represents a serious attempt to restate the law in tort, contract and crime in an intelligible way. In future, any serious student of the subject will have to take note of it. Unfortunately for the authors they have backed a loser in supporting Re Polemis and criticising the foreseeability test; and since much of their argument depends upon their opinion on this question, their book must now be accounted largely out of date, if the decision of the Judicial Committee in The Wagon Mound receives the acceptance that seems probable. In respect of the general theory of causation, however, the discussion retains its intellectual interest; and the chapters on contract and crime, though relatively short, are largely unaffected by The Wagon Mound.

Type
Research Article
Information
The Cambridge Law Journal , Volume 19 , Issue 1 , April 1961 , pp. 62 - 85
Copyright
Copyright © Cambridge Law Journal and Contributors 1961

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References

1 Causation in the Law. By Hart, H. L. A. and Honoré, A. M.. Oxford: Clarendon Press: Oxford University Press. 1959.Google Scholar

2 [1921] 3 K.B. 560 (C.A.).

3 [1961] 2 W.L.R. 126, noted above, p. 23. The official name of the case is Overseas Tankship (U.K.) Ltd. v. Morts Dock A Engineering Co. Ltd.

4 Cf. Hart and Honoré, 104. 62

5 See, e.g., Beale in 33 H.L.R. 638.

6 Op. cit. 15, 28.

7 Op. cit. 1.

8 (1939) 39 Col.L.Rev. 1087 at 1096–1097.

9 At pp. 1096–1097.

10 Fottler v. Mosley (1904)Google Scholar 185 Mass. 563; 70 N.E. 1040.

11 Op. cit. p. 1097. The passage is cautiously worded; it admits some unspecified distinction between the two cases, but not in terms of causal connection.

12 Attempts to isolate a crucial historical cause are sometimes constructed on a comparison between somewhat similar societies, where differences of development seem to be due to particular determinants. This is the method of Toynbee's A Study of History. See the comments in Huntington Cairns, The Theory of Legal Science (Chapel Hill 1941) 66–67.

13 Op. cit. p. 21.

14 i.e., on a later occasion. Cf. p. 53: “This does not mean that we are committed to any assertion that, if the circumstances were repeated, the same action would follow.” The authors are not addressing their minds to the question whether B would have acted on that occasion if there had been no threats, which is the question that I take to be the one relevant to an inquiry into factual causation for legal purposes.

15 Op. cit. p. 52.

16 The authors concede this point at other places in their work, e.g., p. 9. At p. 66 they say that “we often trace a causal connection between an antecedent and a consequent which themselves very rarely go together: we do this when the case can be broken down into intermediate stages, which themselves exemplify different generalisations.” And again at p. 29: “It is perfectly legitimate to say that A's blow caused B's nose to bleed and to feel confidence in the truth of this statement, though we could not formulate or would have very little confidence in a generalisation purporting to specify conditions under which blows are invariably followed by bleeding from the nose.” The reason obviously is that, in making the particular causal statements with which law and history are concerned, we pick out one or a few of the causal antecedents of the effect and consider it as “the” cause. For the purpose of our treatment, we do not have to consider how many other causal antecedents there are, because we are not interested in them.

17 Op. cit. pp. 116–120.

18 Lampert v. Eastern National Omnibus Co. [1954] 1 W.L.R. 1047.Google Scholar

19 Nova Mink Ltd. v. Trans Canada Airlines Ltd. [1951] 2 D.L.R. 241.

20 Richards v. Highway Ironfounders (West Bromtcich) Ltd. [1955]Google Scholar 1 W.L.R. at 1060 (C.A.).

21 [1959] A.C. at 762.

22 Mr. Cyril Grunfeld, commenting on this case in 22 M.L.R. 431, wrote: “Whatever the justification for this finding of fact in the instant case, the dangers of defining the causal nexus in the realm of pure hypothesis and speculation need not be emphasised.” Perhaps this means that, in Mr. Grunfeld'B view, post hoc should be taken to be propter hoc unless there is evidence to justify the inference that causal connection is absent. In one sense, hypothesis and speculation are essential for determining causal connection, since every statement of causal connection asserts what would have happened if the facts had been different.

23 [1951] 2 K.B. 537 (C.A.).

24 [1955] A.C. 321. This turned on s. 16 of the Factories Act, 1937, which was inexplicably not considered in Thurogood's case.

25 It seems to me that this is the answer to the difficulty considered by Hart and Honoré at p. 18.

26 [1957] A.C. 386. See Hart and Honoré, 111–114.

27 The cases are collected in 23 M.L.R. 234–235.

28 Cf. James and Perry in 60 Tale L.J. at 772–773.

29 See op. cit. 116 et seq., 225 et seq. At the former place the expression “additional causes” is used; at the latter place, “alternative causes.”

30 As Mclaughlin pointed out: 39 H.L.R. 153.

31 Contrary to the opinion of James and Perry in 60 Yale L.J. at 775; but the latter opinion is a minority one among American jurists.

32 Douglas, Burt d Buchanan Co. v. Texas d Pacific Ry. Co. (1922)Google Scholar 150 La. 1083, 91 So. 503; Hart and Honoré 227.

33 Cf. Hall v. Wilson [1939]Google Scholar 4 All E.R. 85, where a breadwinner was killed before the commencement of the war; damages under the Fatal Accidents Act on account of his death were awarded in an action brought after the war had started, but the damages were reduced on account of the increased risk of death consequent upon the war.

34 (1932) 85 N.H. 449, 163 Atl. 111; see Hart and Honoré, 162 n. 6, 222.

35 Op. cit. 120.

36 Op. cit. 230 et seq.

37 The most recent is in 76 L.Q.R. 567.

38 21 Can.B.Rev. 65.

39 The Law of Torts, Chap. 9; 31 Can.B.Rev. 496–497.

40 [1942] A.C. 691.

41 At p. 702. Cf. per Viscount Simon L.C. at p. 698, and per Lord Wright at p. 706. See also Boiler Inspection and Insurance Co. of Canada v. Sherwin Williams Co. of Canada [1951] A.C. 319 at 333 (P.C.).

42 Per Lord Macmillan in the Yorks. Dale case, at p. 702.

43 Smith Hogg & Co. v. Black Sea Insurance Co. [1940]Google Scholar A.C. at 1003. See, however, Woods v. Duncan [1946] A.C. at 421.

44 [1921] 3 K.B. 560 (C.A.).

45 Op. cit. 72–75 and passim. The discussion appears to owe something to the view of James and Perry in 60 Yale L.J. at 790–794.

46 The City of Lincoln (1889) 15 P.D. 15, as explained in The Singleton Abbey [1927] A.C. 16 at 27; Carlslogie S.S. Co. Ltd. v. Royal Norwegian Government [1952] A.C. 292; 12 M.L.R. 375.

47 But see further discussion of The Wagon Mound at pp. 23–33 of this issue [Ed.]

48 i.e., where the “risk principle” is infringed.

49 Op. cit. 144.

50 Op. cit. 151 et seq.

51 See his speeches in Weld-Blundell v. Stephens [1920]Google Scholar A.C. 956 and S.S. Singleton Abbey v. S.S. Paludina [1927]Google Scholar A.C. 16.

52 e.g., Northwestern Utilities v. London Guarantee and Accident Co. [1936]Google Scholar A.C. 108 at 125 (P.C.); Wells v. Metropolitan Water Board [1937]Google Scholar 4 All E.R. 639; Stansbie v. Troman [1948]Google Scholar 2 K.B. 48 (C.A.); Davis v. Liverpool Corpn. [1949]Google Scholar 2 All E.R. 175 (C.A.); cf. 52 H.L.R. 387; 65 L.Q.R. 137.

53 [1961] 2 W.L.R. at 139.

54 39 Col.L.Rev. 1108.