Causal relationship between breach and injury Causation is the "causal relationship between the defendant's conduct (breach) and end result (injury)". In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus (an action) from which the specific injury or other effect arose and is combined with mens rea (a state of mind) to comprise the elements of guilt. Causation only applies where a harm, loss injury or death has been occurred and therefore is immaterial with regard to inchoate offenses. Legal systems more or less try to uphold the notions of fairness and justice. If a legal system deems liability exists against a party leading to compensation to another for losses, harm or injury, liability is imposed according to the idea that those who injure others should take responsibility for their actions. Although some parts of any legal system will have qualities of strict liability, in which the mens rea is immaterial to the result and subsequent liability of the actor, most look to establish liability by showing that the defendant was the cause of the particular injury or loss. The more predictable the outcome, the greater the probability that a party caused the harm, injury or loss intentionally. There are a number of ways in which the law may interpret this simple rule of practical experience: that there is a natural flow to events, that a reasonable man in a similar situation would have foreseen this consequence as likely to occur, that the loss flowed naturally from the breach of contractual duties. However it is phrased, the essence of the degree of fault attributed will lie in the fact that reasonable people try to avoid injuring others, so if harm was foreseeable, there should be liability to the extent that the extent of the harm actually resulting was foreseeable. Causation of an event alone is insufficient to create legal liability. Sometimes causation is one part of a multi-stage check for legal liability. For example, for the defendant to be held liable for the tort of negligence, the defendant must have owed the plaintiff a duty of care, breached that duty, by so doing caused damage to the plaintiff, and that damage must not have been too remote. Causation is just one component of the tort. Causation can also be an only requirement for legal liability unless the outcome is specifically excluded. Under product liability, the courts have been known to apply the principle of strict liability: the fact that the defendant's product caused the plaintiff harm is the only thing that matters. The defendant need not also have been negligent. Intent or lack thereof is do defense. Theories of Liability In most jurisdictions, a plaintiff's cause of action may be based on one or more of four different theories: negligence, breach of warranty, misrepresentation, and strict tort liability. Negligence refers to the absence of, or failure to exercise, proper or ordinary care. It means that an individual who had a legal obligation either omitted to do what should have been done or did something that should not have been done. A product manufacturer, importer or seller can be held liable for negligence if lack of reasonable care in the production, design, storage or assembly; caused harm. Breach of warranty refers to the failure of a manufacturer, importer or seller to fulfill the terms of a promise, claim, or representation made concerning the quality or type of the product. The law assumes that a manufacturer, importer or seller gives certain warranties concerning goods that are sold and that he or she must stand behind these assertions. By the same interpretation, a service provider/vendor may be seen in similar light to offer certain warranties concerning the services they offer. Both product liability and professional indemnity can be considered under this theory. Misrepresentation in the advertising and sales promotion of a product refers to the process of giving consumers false security about the safety of a particular product, ordinarily by drawing attention away from the hazards of its use. An action lies in the intentional concealment of potential hazards or in negligent misrepresentation. The key to compensation on the basis of misrepresentation is the plaintiff's ability to prove that he relied upon the representations that were made. Misrepresentation can be argued under a theory of breach of express warranty or a theory of strict liability. Strict liability involves extending the responsibility of the manufacturer, importer or seller to all individuals who might be injured by the product, even in the absence of fault. Injured guests, bystanders, or others with no direct relationship to the product may sue for damages caused by the product. An injured party must prove that the item was defective, the defect proximately caused the injury, and the defect rendered the product unreasonably dangerous. Contingent Liability Realistically, a firm that hires an independent contractor is not liable for damage or injury caused by the contractor. There are exceptions to this general rule though. These exceptions give rise contingent liability. Contingent liability occurs in situations where the firm is liable for an independent contractor’s negligence because the firm did not use reasonable care in selecting someone competent. If the activity to be performed by an independent contractor is inherently dangerous, the firm is strictly liable for damages and cannot shift its liability to the contractor. The fact that the contractor agrees to hold the firm harmless will not relieve it from liability. A firm that hires an independent contractor to do a job and then interferes in details of the work may also find itself liable for the contractor’s negligence. The concept of contract for service (clientIndependent contractor) and contract of service (employer-employee) come into play. Establishing causation Where establishing causation is required to establish legal liability, it usually involves a two-stage assessment. After establishing 'factual' causation, ‘legal’ causation follows. ‘Factual’ causation must be established before inquiring into legal causation, perhaps by assessing if the defendant acted in the plaintiff’s loss. Determining ‘legal’ causation often involves examination of the theories of liability to determine on which theory liability can be placed. a. Factual causation The process of establishing factual causation is the “but-for test”. It inquires ‘But for the defendant’s act, would the harm have occurred?’ The presumption is that had the defendant not acted, the plaintiff would not have been harmed. For example, Cain shoots and wounds Abel. We ask ‘But for Cain's act, would Abel have been wounded?’ The answer is ‘No.’ So we conclude that Cain caused the harm to Abel. The “but for test” is a test of necessity. It asks was it ‘necessary’ for the defendant’s act to have occurred for the harm to have occurred. One weakness in the “but-for test” arises in situations where each of several acts alone are sufficient to cause the harm. For example, if both Cain and Abel fire what would each in itself be fatal shots at Esau at approximately the same time, and Esau dies, it becomes impossible to say that but-for Cain's shot, or “but-for” Abel's shot alone, Esau would have died. Taking the “but-for test” literally in such a case would seem to make neither Cain nor Abel responsible for Esau's death. The courts have generally accepted the” but for test” notwithstanding these weaknesses, qualifying it by saying that causation is to be understood in its simplest form. b. Legal causation Notwithstanding the fact that causation may be established in the above situations, the law often intervenes and says that it will nevertheless not hold the defendant liable, but will also examine proximate cause. The legally liable cause is the one closest to or most proximate to the injury. This is known as the Proximate Cause rule. However, this situation can arise in strict liability situations. Imagine the following. A critically injures B. As B is wheeled to an ambulance, she is struck by lightning. She would not have been struck if she had not been injured in the first place. Clearly then, A caused B's whole injury on the ‘but for’ test. However, at law, the intervention of a supervening event renders the defendant not liable for the injury caused by the lightning. Defenses against liability A number of defenses against liability exist, with varying degrees of acceptance. - Assumption of risk This is a defense against liability, which bars or reduces a plaintiff's right to recovery against a negligence. A defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks inherent in the dangerous activity in which the plaintiff was participating at the time of his or her injury. "Primary" assumption of risk occurs when the plaintiff knows about a particular risk and -- through words or conduct -- accepts that risk, thereby discharging the defendant of its duty of care. The primary assumption of risk defense operates as a complete bar to recovery. For example, someone who goes bungee jumping assumes the risk that they will fall and break a bone and cannot resort for such an injury. "Secondary" assumption of risk exists where the defendant still has a duty of care to the plaintiff, but the plaintiff knew about the risk caused by the defendant's negligence and proceeded anyway. For example, an employer supplies an employee with a defective piece of machinery, and knowing the machinery is defective, the employee proceeds to use it anyway (albeit carefully). Should the machine cause injury, the employer may have a secondary assumption of risk defense. Assumption of risk can also be Express assumption of risk where the plaintiff explicitly accepts the risk, whether by oral or written agreement (a gym requires its members to sign a liability waiver stating that the gym is not legally responsible for any injuries). It can also be Implied assumption of risk when the plaintiff's conduct demonstrates that the plaintiff knew of the risk and proceeded anyway. - Contributory negligence In some common law jurisdictions, contributory negligence is a defense to a liability claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negligence. Because the contributory negligence doctrine can lead to harsh results, many common law jurisdictions have abolished it in favor of a "comparative fault" or "comparative negligence" approach. - Comparative negligence Also known as a non-absolute contributory negligence, this is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff's own negligence contributed to cause the injury. When the defense is asserted the court must decide the degree to which the plaintiff's negligence and the combined negligence of all other relevant actors all contributed to cause the plaintiff's damages. It is a modification of the doctrine of contributory negligence that disallows any recovery by a plaintiff whose negligence contributed even minimally to causing the damages. A comparative negligence approach reduces the plaintiff's damages award by the percentage of fault that the court assigns to the plaintiff for his or her own injury. For example, if a court thinks that the plaintiff is 30% at fault for his own injury, the plaintiff's damages award will be reduced by 30%. - Last clear chance Under this doctrine, a plaintiff who assumed the risk or contributed to an accident is not barred from recovery if the defendant had the opportunity to avoid the accident but failed to do so. A driver who could have avoided knocking a jaywalker but did not had the last clear chance to avert the accident. The driver could therefore not limit liability by claiming negligence on the part of the plaintiff. Today, the doctrine has only minor application. It may be used, however, when the defendant employs the defense of contributory negligence against the plaintiff. - Sovereign, familial and charitable immunity Where immunity applies, the defendant has a complete defense against liability because of status as a protected entity, professional, or other party. For example, immunity granted to diplomats and foreign government officers on assignments in guest states. This doctrine has lost strength in most countries, but it still exists to some degree in certain circumstances. Other immunities extend to charitable organizations and family members. Like sovereign immunity, these too have lost most of their shield against liability. Doctrines of defense are used to prevent a successful negligence (and sometimes strict liability) lawsuit. Other legal doctrines modify the law to assist the plaintiff in a lawsuit. Some of these are listed below; i. ii. iii. iv. Res Ipsa Loquitur – The thing speaks for itself Strict liability Vicarious liability - one party is held partly responsible for the unlawful actions of a third party. Joint and several liability - two or more parties can be held independently liable for the full amount of a personal injury plaintiff's damages
