The term ‘substantial’ makes it clear that the defendant’s act need not be the sole cause but the act must be more than just a … One can see their concept most easily in three steps. With regard to coincidences and epiphenomenal pairs of events, they assert that there are no causal laws connecting classes of such events with one another; one type of event is not necessary for another type of event, however necessary one particular event may be for its putative (coincidental or epiphenomerical) ‘‘effect.’’ With regard to the embarrassment of riches in terms of how many conditions are necessary for any given event or state, they typically bite the bullet and admit that causation is a very nondiscriminating relation; however our usage of ‘‘cause’’ is more discriminating by building in pragmatic restrictions on when certain information is appropriately imparted to a given audience. There are often two reasons cited for its weakness. The vagueness lies in specifying the possible world in which we are to test the counterfactual (Moore, 1997, pp. 5, sec. One who intentionally or recklessly causes a harm that another only tries to cause or risks causing, is more blameworthy (Moore, 1997, pp. Thus, on the counterfactual test both my stabbing the victim through the heart and your failure to prevent me (though you were half a world away at the time) are equally the cause of the victim’s death. Sign in Register; Hide. However, this test is subject to limits and exceptions which are considered in this Practice Note. The third and fourth sets of problems stem from the inability of the counterfactual test to match what for most of us are firm causal intuitions. law of delict. We know we are to eliminate the defendant’s act, but what are we to replace it with? The criticism is that the test is thus overinclusive. To make the counterfactual test determinate enough to yield one answer rather than another, we have to assume that we share an ability to specify a possible world that is ‘‘most similar’’ to our actual world, and that it is in this possible world that we ask our counterfactual question (Lewis, 1970). The first case summaries involve questions of factual causation, which usually requires an application of the ‘but-for’ test. Legal Causation is usually expressed as a question of 'foreseeability'. For crimes requiring purpose or specific intent for their mens rea, the test asks whether the harm that happened was an instance of the type of harm the defendant intended to achieve by his action. Establishing Factual Causation. Rather, there is one rule universally applicable to all criminal cases: was the harm that the defendant’s act in fact caused foreseeable to him at the time he acted? If it would, that conduct is not the cause of the harm. The second sort of test here is one that adopts general rules of legal causation. (If it is not close enough, then he may yet be convicted of some lesser crime of battery or reckless endangerment.). The first of these are what we may call ‘‘ad hoc policy tests’’ (Edgarton). 471–530). In the concurrent cause cases, where the two fires join to burn the victim’s house, each fire is said to be a necessary element of its own sufficient set, so each fire is a cause. Such salient events, in other words, are breakers of causal chains as much as they are initiators of causal chains, so that if they do intervene they relegate all earlier such events to the status of mere background conditions. Special offer! After reading this chapter you should be able to: ■Understand the usual means of establishing causation in fact, the “but for” test ■Understand the problems that arise in proving causation in fact where there are multiple causes of the damage ■ Understand the possible effects on the liability of the original defendant of a plea of novus actus interveniens, where the chain of causation has been broken ■Understand the test for establishing causation in law, reasonable foreseeability of harm, so that the damage is not too r… This has two effects: at t2, my feet get tired; at t3, my dog gets tired. There must be both factual and legal causation. The criticism here is that the test is underinclusive. As to the problems of omissions and asymmetry through time, they assert that we should simply stipulate that a cause is not only a necessary condition for its effect, but it is also an event (not the absence of an event) that precedes (not succeeds) the event which is its effect. 267–278; Moore, 1999). 363–399). We often lack the kind of precise information that could verify whether the culpable act of the defendant made any difference in this way. Also, in the preemptive case, isn’t the addition of the condition, ‘‘existence of the victim’s house at the time the second fire would be sufficient to destroy it,’’ already sliding in the causal conclusion that the first fire already caused the house not to exist? To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant. Very generally there are four sorts of problems with the counterfactual test for causation in fact. 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