This chapter offers an example of conceptual instrumentalist analysis. Being instrumentalist in nature, the analysis focuses on the degree to which one plausible doctrinal design or another best advances the underlying social policies sought to be achieved in a given area of law. Unlike classic empirical analysis, however, the social policies at play in conceptual instrumentalist analysis are not concrete practical benefits that might be furthered in the real world, like greater compensation or deterrence, but are instead more abstract preferred outcomes, like greater fairness or the presence of sufficient fault by a certain party before the imposition of legal liability. Of course, appellate court analysis of any particular legal issue might involve elements of both empirical and conceptual instrumentalist analysis.

The focus of the analysis in this chapter is the tort law requirement of causation. The account presented seeks to explain the structure of this long-standing requirement, the meaning ascribed to the distinction between actual and proximate cause, and the rationale underlying the various exceptions to the main rule that have been developed over time.

As we have already seen, there are three basic elements to a successful action in negligence:

1. (1) a duty to take reasonable care owed by the defendant to the plaintiff

2. (2) a breach of that duty of care by the defendant

3. (3) damage resulting to the plaintiff from that breach.

This chapter deals with the third element. This stage involves taking (yet again) three steps:

1. (1) Identify the damage having an adverse effect on the plaintiff to be recognised by law as damage for which compensation can be sought.

2. (2) Link the defendant’s conduct (act or omission) to the damage suffered by the plaintiff.

3. (3) Establish the scope of the defendant’s liability or, putting it differently, establish the extent to which the defendant should be found liable for the harm suffered by the plaintiff OR the type of harm suffered was within the scope of foreseeability.

Once the plaintiff has established that the defendant owed him or her a duty of care, the next question is whether the defendant breached that duty of care. In its broadest terms, breach is about whether the defendant has engaged in negligent conduct, which can be understood as failing to take the precautions against certain risks of harm that the reasonable person, in the circumstances, would have taken.

So how do we work out which precautions the reasonable person would have taken in the circumstances? This analysis has two main parts:

1. (1) A court determines the qualities of the reasonable person against whom the behaviour of the defendant will be compared.

2. (2) The court then decides what that reasonable person would have done if placed in the same circumstances the defendant was in.

   What the defendant actually did or did not do is then compared to that standard of expected carefulness. If the defendant’s conduct was less careful than what the court decides the hypothetical reasonable person would or would not have done, the defendant is said to have fallen below the standard of care expected of them and will have breached their duty of care.

Remoteness is the fourth limb of the negligence action, and represents the final opportunity for the court to circumscribe D’s liability. This element asks whether the damage complained of, although factually caused by D’s act or omission, was legally too remote. This principally (but not solely) involves an enquiry as to whether the kind or type of damage was reasonably foreseeable by D at the relevant time. As a general rule, D cannot be liable in law for damage that was not reasonably foreseeable.

Where D deliberately accumulates something on his land which amounts to a ‘non-natural user’ of his land, and which is likely to do damage to C’s land if it escapes, D is required by law to prevent its escape, and is liable for all the direct and foreseeable consequences of its escape.

Breach is doing something which a prudent and reasonable person would not do, or failing to do something which a prudent and reasonable person would do. This definition of breach, adapted from Alderson B’s ‘classic statement’1 in Blyth v Birmingham Waterworks Co2 back in 1856, highlights the key question: what would a reasonable person have done differently, to avoid the risk of harm or injury occurring to C? If the answer to that is, ‘nothing’, then breach will fail.