McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee
cause of the boy’s injury?
“…a defender is liable, although the damage may be a good deal greater in extent than was foreseeable. He can only escape liability if the damage can be regarded as differing in kind from what was foreseeable.” In this case, although the manner (the explosion) was not foreseeable, the kind of injury (burns) were a foreseeable consequence of the workers’ fault.
However, courts have also used the specificity of damage in a restrictive way. In the case of Tremain v. Pike (1969), a farm employee contracted Weil’s disease—a disease spread by rats’ urine—during an infestation of rats at the farm. The court held that damage from rats was foreseeable in general, but that Weil’s disease was too rare to be foreseeable.
Whether the test is directness or foreseeability, legal causation is basically a matter of value judgments, informed by common sense and policy considerations.
In Palsgraf, Andrews J. acknowledged that legal causation was a question of “practical politics.”
Civil law courts, however, will never admit that policy is part of the directness test—although doctrinal writers agree that courts make policy decisions.
Civil law uses the story of “Pothier’s cow” to illustrate the difference between causation in fact and causation in law.
The directness test appears to be objective, in principle.
The foreseeability test has objective and subjective elements:
objective: whether a reasonable person would have foreseen the general type of damage that could occur
subjective: whether the defendant could have reasonably foreseen the specific damage that did occur.
The directness test for causation can be expressed in terms of various theories:
causa sine qua non (but-for test)
adequate causation (causes likely to cause the injury in the normal course of events)
However, these theories have only had a small impact on courts’ decisions in practice.
Starck, Roland, & Boyer, Obligations: Responsabilité délictuelle (France, 1995) (CB2p135)
The authors say that causation is empirical and intuitive, and that there is no general definition of causation in the law.
They quote Paul Esmein, who writes that judges decide causation according to their “feelings.”
They tell the story of Pothier’s cow, the moral of which is that causation must be direct. However, they note that the law has no definition of what is direct.
They summarize a number of cases where direct causation was found, and a number where direct causation was not found, to show how arbitrary the decisions can be.
The fact that the victim might have been predisposed to injury does not mitigate the causal link: all that matters is that the defendant put the person into the state they’re in now.
The seriousness of the defendant’s fault appears to influence whether the judge finds direct causation—but the jurisprudence does not do this systematically.
Morrissette c. McQuat & Sons,  B.R. 684. (CB2p147)
McQuat had a storage building where people loaded and unloaded tanks of propane. Sticking out of each side of the concrete platform was an iron spike about 10 inches long, used as a doorstop. Morrissette was loading propane cylinders into his truck, and tying them together with a chain, when the chain broke, and he was propelled backwards where he impaled himself on one of the iron spikes. (Surprisingly, the long-term damage from this was minor.)