The Problem of Indeterminate Causation

AuthorJamie Cassels - Craig Jones
4. The Problem of
Indeterminate Causation
In mass tort cases, especially those involving large numbers of persons
who have been exposed through negligence to toxic substances that cause
adverse health effects through non-observable modes of causation (often
called “toxic torts”), the traditional rules of law and procedure often appear
both inefficient and unfair. Modes of procedure and evidence that require
proof and assessment on a particularistic, individual-by-individual basis do
not easily accommodate claims based on non-traumatic, gradual, or cumu-
lative harms.
Much has been written recently on the problem of causation, since the
conceptual framework of nineteenth-century tort law has had to evolve to
meet claims for injury compensation for harms that are more widespread
and causally complex. The variety of products, processes, and activities that
can cause injury have vastly expanded during that time. Modes of mass
production and distribution ensure that the potential consequences of
error are more widely felt and scientific understandings of causal relation-
ships have vastly expanded (and complicated) our understanding of the
links between products, activities and environments, and harms to human
Tort scholars and courts have debated doctrinal innovations such as
onus-shifting and presumptions and procedural innovations such as sci-
ence panels1and the aggregation of claims through the aggressive use of
class action suits.2Certainly, these methods have potential to ease some of
the problems of particularistic proof. But dealing with large-scale claims on
a probabilistic basis may require more than procedural innovation and
advanced methods of proof of causation. In fact, it may require that we re-
examine the necessity of establishing precise causal connections between
plaintiff and defendant at all.
In the 1970s and early 1980s, Posner,3Calabresi,4and others5consid-
ered the question of causation in law in terms of economic efficiency, lay-
ing the groundwork for many of the “instrumentalist,” “functionalist,” or
“utilitarian” proposals that followed. The late 1980s led to further analyses
by Fleming,6Moore,7Brennan,8Wright,9and Ginsberg and Weiss,10 all of
whom canvassed possible solutions to what Fleming called “the problem of
the indeterminate defendant.”11 Proposals for reform that included the
imposition of liability on the basis of risk — rather than harm — were
1 T.A. Brennan, “Causal Chains and Statistical Links: The Role of Scientific Uncertainty
in Hazardous-Substance Litigation” (1987–88) 73 Cornell L. Rev. 469.
2 Harvard’s David Rosenberg has been perhaps the most outspoken champion of the
latter approach, and we have discussed procedural options elsewhere: See D. Rosen-
berg, “Class Actions for Mass Torts: Doing Individual Justice by Collective Means”
(1987) 62 Ind. L.J. 561; D. Rosenberg, “Of End Games and Openings in Mass Tort
Cases: Lessons from a Special Master” (1989) 69 B.U. L. Rev. 695; D. Rosenberg,
“Individual Justice and Collectivizing Risk-Based Claims in Mass-Exposure Cases
(1996) 71 N.Y.U. L. Rev. 210; D. Rosenberg, “Mandatory-Litigation Class Action: The
Only Option for Mass Tort Cases” (2001) 115 Harvard L. Rev. 831. See also C. Jones,
Theory of Class Actions (Toronto: Irwin Law, 2002); J. Cassels, The Uncertain Promise of
Law: Lessons from Bhopal (Toronto: University of Toronto Press, 1993) at 75–95.
3 R.A. Posner,“A Theory of Negligence” (1972) 1 J. Legal. Stud. 29; R.A. Posner, “The Con-
cept of Corrective Justice in Recent Theories of Tort Law” (1981) 10 J. Legal Stud. 187.
4 G. Calabresi, “Concerning Cause and the Law of Torts” (1975–76) 43 U. Chi. L. Rev. 69.
5 See the discussion of “actuarial causation” in J.D. Fraser & D.R. Horwarth, “More
Concern for Cause” (1984) 4 Leg. St. 131. The initial role of the legal economists in the
causation debate is well summarized in H.L.A. Hart & T. Honoré, Causation in the
Law, 2d ed. (London: Oxford, 1985) at 67–81.
6 J.G. Fleming, “Probabilistic Causation in Tort Law” (1989) 68 Can. Bar. Rev. 661.
7 M.S. Moore, “Thomson’s Preliminaries About Causation and Rights” (1987) 63 Chi.-
Kent L. Rev. 497.
8 Brennan, supra note 1.
9 R.M. Wright, “Causation in Tort Law” (1985) 73 Calif. L. Rev. 1735.
10 Ginsberg & Weiss, “Common Law Liability for Toxic Torts: A Phantom Remedy”
(1981) 9 Hofstra L. Rev. 859.
11 Fleming, supra note 6; McLachlin, J., “Negligence Law — Proving the Connection” in
Mullany & Linden, eds., Torts Tomorrow, A Tribute to John Fleming (Sydney: L.B.C
Information Services, 1998) at 18.
greeted with deep suspicion by those who saw tort law not from a function-
al but from a “corrective justice” point of view, such as Epstein12 and Wein-
rib,13 and the question became a significant focus of the debate between the
economic analysts of law and those purporting an independent, normative,
or moral role for tort.14 Despite the differences in approach, most who con-
fronted the issue seemed to agree that causal uncertainty presents central
questions for philosophers and lawyers alike.15
Mass claims present both unique problems of causation and also
unique opportunities for dealing with causal indeterminacy in a principled
and effective way. Ideas of “probabilistic causation,” inherently difficult in
individual cases, begin to make sense when harm is viewed in aggregate
populations. Indeed, it is in mass tort claims where the most interesting
innovations in causation analysis can be expected.
There are both factual and legal elements to the traditional analysis of cau-
sation in tort and in negligence in particular. Generally, one must demon-
strate causation in fact according to the “but for” test, asking whether the
plaintiff would have escaped loss but for the defendant’s conduct. Then the
question of proximate cause arises — whether the link in question is close
enough to merit the imposition of legal responsibility.16 This might be char-
The Problem of Indeterminate Causation 205
12 Epstein’s views were set out in detail in R. Epstein, “A Theory of Strict Liability”(1973)
2 J. Legal. Stud. 151; R. Epstein, “Causation — In Context: An Afterword” (1987) 63
Chi.-Kent L. Rev. 653.
13 E.J. Weinrib, “Causation and Wrongdoing” (1987) 63 Chi.-Kent L. Rev. 407.
14 The original debate is captured in R.A. Posner, “Epstein’s Tort Theory: A Critique”
(1979) 8 J. Legal Stud. 457.
15 M. Kelman, “The Necessary Myth of Objective Causation Judgments in Liberal Politi-
cal Theory” (1987) U. Chi.-Kent L. Rev. 579 at 580 “[T]he two liberal theories of the
state dominating mainstream legal thought, libertarianism and efficiency-orientation,
both rely to an alarming extent on the false premise that causal uncertainty is a
peripheral issue.”
16 Horsley v. MacLaren, [1972] S.C.R. 441. The question of “remoteness” and the related
idea of “foreseeably” is most famously discussed in the case of Palsgraf v. Long Island
Railroad Company, 248 N.Y. 339 (N.Y.A.D. 1928), rearg. den. 249 N.Y. 511 (N.Y. 1928)
[hereinafter Palsgraf], where an extraordinary unlikely igniting of fireworks at a train sta-
tion led to a bystander’s injury from falling scales. The Palsgraf rules were modified in
Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308 at 315 (Ct. App. 1980) to break the
“causal nexus” where “the intervening act is extraordinary under the circumstances, not
foreseeable in the normal course of events, or independent of or far removed from the
defendant’s conduct.”

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