« PreviousContinue »
was the only force in active motion at the time of the damage. Is B. liable? Can the innocent plaintiff, in any conceivable case, have a right to sue A.? 35
If B.'s tort had a substantial share in bringing about the damage, B., of course, cannot be exonerated on the ground that his tort was, in one sense, "caused” by the earlier tort of A.
But because B. is liable, it does not necessarily follow that A. is exonerated. By the decided weight of authority, A. would be liable if he foresaw, 36 or ought to have foreseen, the commission of B.'s tort, and the resultant damage, as a not unlikely consequence of his earlier tort. This subject will be more fully considered later under the general head of liability for probable consequences. And still later, in discussing the alleged rule of non-liability for improbable consequences, we may advert to the question whether A. may not sometimes be liable, even though the commission of B.'s tort was not a consequence to have been anticipated.37
35 In many cases it is not correct to speak of A. and B. as “successive” wrongdoers, nor to call A. "the earlier” or B. "the later” wrongdoer. See Clerk & Lindsell, Torts, 5 ed., 519, 522. But for present purposes we here adopt the popular phraseology, and use the words "earlier” and “later”; although A.'s tort, in its effect, may have continued down to the moment of the damage just as much as B.'s tort.
36 If A., when committing his tort, foresees the probability that his tort will induce B. to do tortious damage to X., he is, from one point of view, more guilty than B. A. has done an act which he knew was calculated ultimately to bring harm to X.,
and also mediately to induce B. to do an unlawful act, whereby B. would incur liability. Why should A., who contemplates the likelihood of causing harm to two parties, X. and B., be excused when B., who contemplates harm to only one party, X., is held liable ?
37 What has been said concerns the question of causation when arising in litigation between an innocent plaintiff and one of two independent wrongdoers. But it should be carefully noted that, in a controversy between two negligent wrongdoers, courts are inclined to adopt an exceptional rule of legal cause ; differing from the ordinary rule of legal cause which is applieł in a suit by an innocent third party against either of said wrongdoers. The term “proximate cause” or “legal cause” is not used in precisely the same sense in fixing defendant's liability to an entirely innocent plaintiff and in fixing a negligent plaintiff's disability to sue a negligent defendant. (This language is based on a statement in Pollock, Torts, 8 ed., 464. See also Fitzgibbons, L. J., in Devlin v. Belfast Corporation, (1907] 2 I. R. 437, 457.) Acts of negligence on the part of A. and of B., which would be considered simultaneous (concurrent) in a suit brought against either of them by an innocent third person such as X., are sometimes in a controversy between A. and B. themselves considered not as simultaneous but as successive. One act is considered as ending before the other began ; although logically (see Clerk & Lindsell, Torts, 5 ed., 519) the negligence of the "earlier” actor continued down to the moment of the damage. If the negligence of the plaintiff, A., has ceased to operate actively; and the negligence of the defendant B. began to operate later and was in active motion at the time of the damage ; then, as between these two negligent parties, A. and B., the negligence of the defendant, B., may be treated as the sole cause
We come now to what is sometimes termed “The Probable Consequence Rule.”
This really involves two rules.
The alleged rule, expressed in a single sentence, is that, so far as the question of causation is concerned, a wrongdoer is liable for probable consequences only.
This statement affirms, in effect, two propositions, which are entirely independent of each other.38
1. That if a consequence which actually resulted from defendant's tort was a probable consequence, then defendant cannot escape liability on the ground that his tort was not the legal cause.
2. That if a consequence which actually resulted from defendant's tort was an improbable consequence, then defendant is exonerated on the ground that his tort was not the legal cause.
The first, or affirmative, proposition is sustained in the great majority of cases.
The second, or negative, proposition is the subject of much controversy 39
These two alleged rules deserve separate and careful consideration. The first alleged rule may be stated more fully as follows:
Whether a wrongdoer is or is not liable for improbable consequences, he must at least be liable, so far as the question of causation is concerned, for all probable consequences.40
of the damage ; and hence the action of the plaintiff A. against B. is not barred by contributory negligence.
But see the following criticism of the view last stated : “The above statements, moreover, are open to the objection that they seem to imply that, in the cases to which the qualification applies, there is a succession of negligences in point of time and that the party last negligent is the party really responsible ; but it may be observed that if a man places his person or property in a position of danger, or establishes a state of things which is or may be dangerous to others, his negligence in so creating a source of danger to himself or others continues so long as that source of danger remains unremedied, that is to say, continues down to the very moment of the accident.” Clerk & Lindsell, Torts, 5 ed., 519.
38 Sometimes it is erroneously implied that the second proposition is a necessary deduction from, or accompaniment of, the first.
39 "The criticisms of the rule apply rather to its alleged restrictive effect than to its affirmative form.” It is sometimes "denied that liability should be confined” to probable consequences. Watson, Damages for Personal Injuries, 175.
40 Under any reasonable interpretation, the term “probable consequences” excludes
Before trying to get at the exact meaning of the word "probable” in this connection, we must give a brief consideration to the compound phrase "probable and natural.”
It is not unusual to say that a wrongdoer is liable for all probable and natural consequences.
If "natural” is here used in the common, but not literally accurate, sense of "probable,” then the phrase "liable for all probable and natural consequences” is tautological. If "probable” is taken to mean “foreseeable as not unlikely to occur," and "natural" is construed in its more literal signification, as meaning “occurring in the ordinary course of nature," then the addition of the requisite of naturalness to the requisite of probability might sometimes unjustly absolve a wrongdoer. In the great majority of instances the addition would make no difference. Generally if a result occurs which was probable, it occurs “in the ordinary course of nature.” But it is conceivable that a wrongdoer may have foreseen, or ought to have foreseen, that there was likely to be an extraordinary departure from the usual course of nature. Indeed in some cases such an extraordinary departure is in actual and visible progress at the moment of his committing the tort. In such instances, a wrongdoer cannot claim to be exempted from liability for a probable consequence, merely because it did not occur in the ordinary course of nature.
Confusion is sometimes occasioned by lumping together “probable" and "natural" and treating them as synonymous words. Thus in Hill v. Winsor,42 Colt, J., after saying that the probability that injury in some form would be caused by defendant's act "constitutes negligence, and it is not necessary that injury in the precise form in which it in fact resulted should have been foreseen," added: “It is enough that it now appears to have been a natural and probable consequence.”
Upon this statement Professor Bohlen makes the following criticism:
the requisite that the consequences must have been the necessary or inevitable result of the defendant's tort. See Watson, Damages for Personal Injuries, $ 36.
« For various forms of expressing the meaning intended to be conveyed by the phrase "probable and natural consequences," see 36 Am. St. Rep. 809, note; Gaines, C. J., in Texas & Pacific Ry. Co. o. Bigham, 90 Tex. 223, 225, 38 S. W. 162, 163 (1896). As to “natural” see 1 Sedgwick, Damages, 9 ed., § 138.
* 118 Mass. 251, 259 (1875).
“Is it not a contradiction in terms to say that a thing so improbable that it could not be reasonably foreseen may become probable afterwards, because it does occur ? It is natural, if it occurred in the ordinary course of nature, animate and inanimate, but it is not probable, unless it could have in advance been predicted as likely to occur.
What is the exact meaning of the word "probable" as used in the alleged rule, i.e., the rule that a wrongdoer is at least liable for all probable consequences.
We submit that the word “probable,” when used in laying down a test of duty to use care or when used in the alleged rules affirming or restricting liability for the consequences of a tort, does not carry the full meaning belonging to it when used in charging a jury as to the quantum of proof. When the judge tells the jury that the plaintiff must satisfy them that the existence of an alleged fact is probable (that a certain proposition is probably true), he means that the jury must find that the chances (the balance of probabilities) are in favor of the existence of the disputed fact. If the jury find that the chances in favor of its existence are only three out of six (and a fortiori if only three out of seven), they must find against the party upon whom the burden of proof rests. But if the chances of harm resulting to plaintiff, in case certain precautions are not taken by defendant, are three out of seven, the jury would often be justified in finding the defendant negligent if he could have taken those precautions and failed to do so. So when the question is one of causal relation it is a mistake to use language 44 implying that a consequence in order to be “probable" must be “one that is more likely to follow its supposed cause than it is to fail to follow it.” “Probable,” both in testing the duty to use care and in the alleged rule as to causation, does not mean "more likely than not,” but rather “not unlikely”; or, more definitely, “such a chance of harm as would induce a prudent man not to run the risk; such a chance of harmful result that a prudent man would foresee an appreciable risk that some harm would happen.” 45 Mr. Watson substitutes "possible of occurrence” for the phrase "likely to occur.” Shearman & Redfield use the words “reasonably possible" instead of "probable.” 46
40 Am. L. Reg. N. S. 85. 44 See such language in Cole v. German Savings & Loan Soc., 124 Fed. 113, 115 (1903).
45 See 33 Can. L. J. 717.
Other suggestions have been made:
"Not so unnatural and so unlikely to happen that, in the opinion of a reasonable fair-minded man, it would be unjust to impose responsibility upon the defendant.” 47
“Not surprising in the light of average human experience." 48
“Probable, as used in this connection, is a word of very indefinite import. Its range does not end where the chances of occurrence and non-occurrence are equal, but merges intangibly into the merely possible.” 49
“There is an infinity of intermedials between impossibility and certainty. To pass from one to the other, the probability may vary by an infinite number of gradations; and among a hundred assertions there are not perhaps two which represent the same degree of probability.”
The term “certainty" can mean nothing more than “a very high degree of probability.” 51
“Furthermore, 'probable consequences include not only those concrete contingencies that are likely to happen, but also those not individually ‘probable,' but belonging to a sort of which one or another, in the alternative, may be expected.” 52
“Damage may be very improbable in itself, and yet be only one of a large number of alternative forms of damage, one or other of which is certain or likely to happen; and in such a case all of these alternatives, by reason of the fact that they are alternatives, are sufficiently natural and probable to be a ground of liability. If I throw a stone into a crowd of a thousand persons, the chances are a thousand to one against hitting any particular individual, yet, in an action brought by one whom I did hit, I could not raise the defense of remoteness of damage.” 53
If the foregoing views are correct, a meaning which is too narrow has sometimes been given to the word "probable” when used in this connection. Giving greater effect (a wider scope) to the word "probable” in the affirmative rule, that a wrongdoer is liable at
46 Watson, Damages for Personal Injuries, $ 33; 1 Shearman & Redfield, Negligence, 5 eil., 28. 33
Can. L. J. 717.
Col. L. Rev. 139.