The usual method for determining actual causality is the purpose for testing. But for the test, he asks: “But would the damage have occurred for the act of the accused?” A pushes and hurts B. We ask, “But would B have been hurt for A`s act?” The answer is no. We therefore conclude that A caused the injury to B. But the one for the test is a test of necessity. It asks whether the defendant`s act was “necessary” for the damage to have occurred. In New South Wales, this requirement exists in section 5D of the Civil Liability Act 2002 (NSW),[1] which reinforces established principles of common law. [2] A difficult issue that has been raised recently is that the defendant is not actually causing the harm or increasing the risk of it occurring. In Chester v Afshar [2004] 4 All ER 587 (HL), a physician negligently failed to warn a patient of the risks associated with surgery, in particular cauda equina syndrome.
[12] The patient underwent surgery and there was a risk that resulted in injury. [12] It was found that even if the patient had been notified, he would still have had surgery, simply at a different time. [13] The risk of harm would be the same in both cases. As a result, the doctor did not cause the injury (because without the lack of warning, the patient would still have performed the operation), nor increased the risk of occurrence (because the risk was the same in both cases). Nevertheless, the House of Lords, which has taken a more prescriptive approach to causality, has always held the physician accountable. Lawyers and philosophers continue to debate whether and how this changes the legal situation. Most of Henry Edgerton`s oft-cited works describe his skepticism about direct causality. However, part of this shows that he was also skeptical about the factual cause requirement. He notes, for example, that symmetrically simultaneous cases of overdetermination were divided into two camps according to the causal doctrines of his time: when there were two guilty actors who set the fire (where the fires came together to form a larger fire that burned the plaintiff`s house), each actor was a cause of destruction; But if only one of the fires was of culpable origin, the other was natural or innocent of human origin, then the guilty actor was not the cause of the destruction.
Using such examples, Edgerton suggested that the demand for cause is indeed (like the requirement for immediate cause) a matter of policy, a matter that depends on “our free and independent sense of justice and, perhaps, the interests of society.” Such a mechanistic conception of causality is primarily a suggestion in the legal literature because of the elusive and seemingly mysterious use of “energy” and “force” by legal theorists (Hart & Honoré 1959). Such a view is often used by jurors, but if theorists cannot explain the general nature of the relationship applied intuitively by jurors, this test tends to collapse on the more metaphysically economic (because primitivist) test of the substantial factor. Causality legally refers to the cause-and-effect relationship between an event or action and the outcome. It is the action or process that produces an effect. Let us therefore examine this fourth policy-based immediate cause test, the misleading test called “harm in risk”. Like the predictability test, this criterion is intended to be a legal cause test universally applicable to all offences and criminal cases. This criterion is also justified for political reasons and does not claim to have anything to do with factual or scientific causality. However, in terms of teaching, the test differs from a simple predictability test. We are now moving from policy-based tests of immediate causality to testing based on the idea that immediate causality, like cause, actually has to do with actual causal relationships in the world.
The oldest of these tests is that suggested by Sir Francis Bacon in his coin “causa proxima” (1630: first maxim). The simple idea behind such a distance test is that causality is a scalar relationship—some sort of thing more or less, not an all-or-nothing thing—and that it fades over time. Each causal analysis is divided into two parts. First, the accused must be the cause of the damage suffered by the victim. The term “without” comes from this sentence: “without the act of the defendant, the damage would not have occurred” (Del. Code Ann. tit. II, 2011). As stated in the Model Penal Code: “[t]he conduct is the cause of a result if. (a) it is a precedent in which the result in question would not have occurred” (Model Penal Code, § 2.03(1)(a)).
Basically, the defendant is the fact or cause of harm caused by the victim when the defendant`s action triggers the chain of events that leads to the final result. Sometimes causality is part of a multi-step test of legal liability. For example, for the defendant to be liable for negligence in tort, he must have owed a duty of care to the plaintiff, breached that duty and thereby caused injury to the plaintiff, and that damage must not have been too low.