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I. INTRODUCTION

In the ordinary days of our lives we encounter different people and we engage in different activities. As human as we are, we may not be able to control everything that will happen around us. No matter how we try to be careful, there is the law of nature that calls for our fault. To do fault is easy but to do better is difficult. This goes without saying that indeed we, as human being, were not born perfect. Thus, regardless of the effort to keep away ourselves from doing harm to others, we still injure someone without or not even realizing it. Conversely, even if we manage to secure ourselves from harm or injury, still there is that force that causes us injury.

Hence, in order to balance these conflicting interests, the law provides for a remedy in order for a person injured by another to recover from his losses due to such injury. Citing Article 2176 of the Civil Code of the Philippines, it provides that whoever by act or omission causes damage to another there being fault or negligence is obliged to pay for the damage done. This very provision of law affords an aggrieved person to seek redress for his right that has been violated by another. But before an aggrieved person may recover, the law also provides that he must first prove that such person who caused damage to him is indeed the one liable for the same. The law seeks not only to help a person injured by another by compensating him his losses but also to protect a person alleged to be liable for the damage by affording the latter his rights to due process in order to be able to defend himself from possible prosecution. In so doing, it is but necessary for the aggrieved party to first convince the court that the three elements of quasi-delict are present before an alleged tortfeasor may be held answerable for his action. These elements are; 1)there must be an act or omission constituting fault or negligence, 2) damage caused by the said act or omission, and 3) causal relation between the damage and the act or omission. Hence, proving negligence and damage alone will not suffice to consider the defendant liable.

Corrective justice presupposes that the defendant has caused harm to the plaintiff. It is this doing of harm that needs to be corrected. So there must be a causal link between the defendants conduct and the plaintiffs loss. Hence, without proof of causation, the action for damages based on tort fails. [footnoteRef:2] Proof of causation is essential to established that someones act or omission is indeed the proximate cause of the injury suffered. [2: Aquino, Timoteo B., Torts and damages, 2013 Edition, p. 317]

Based on the foregoing, our main consideration is how do we determine proximate cause in negligence cases? What are the things to be considered in order to obtain affirmative relief when we come across a situation where we will be proving negligence of someone? Are there factors which we could weigh against to fix or limit the liability of the tortfeasor after establishing that his action is the cause-in-fact of the injury?

These queries are what this paper aims to answer. This paper will discuss two tests which are common law in origin used in determining proximate cause of the injury. In addition, the paper aims to consider the applicability of these two tests in the Philippine jurisdiction. These tests are the cause-in-fact test and the policy test. In determining the proximate cause of the injury, it is necessary to determine if defendants negligence was the cause-in-fact of the damage to the plaintiff. If defendants negligence was not the cause-in-fact, the inquiry stops; but if it is a cause-in-fact, the inquiry shifts to the question of limit of liability of the defendant. The latter determination of the extent of liability involves a question of policy. Consideration of public policy may be given due weight in fixing the limit or scope of legal liability and practical considerations must at times determine the bounds of correlative rights and duties as well as the point beyond which the courts will decline causal connection.[footnoteRef:3] [3: Aquino, Timoteo B., Torts and damages, 2013 Edition, p. 328( Comstock v. Wilson, 76 A.L.R. 676, 257 NY 231.)]

In other words, the question of proximate cause does not only involve cause and effect analysis. It also involves policy considerations that limit the liability of the defendants in negligence cases.

II. THIRD ELEMENT OF NEGLIGENCE: CAUSATION

As earlier pointed out, proof only of negligence and injury in negligence cases will not suffice to render the defendant liable. The plaintiff must prove that there is a causal relation or link between the defendants negligence and the plaintiffs loss or injury suffered.

Courts in the United States, Canada, and Britain have long struggled with the slippery concept of causation. Legal doctrine has been shaped over the years to assist fact finders in determining the answer to the crucial question in a negligence action: What made this incident happen? An automobile accident could be caused by icy road conditions, faulty brakes on the automobile, or the driver speeding through a stoplight without stopping. If the defendants negligence is found to be a cause of the plaintiffs injury, then the defendant is held liable and must compensate the plaintiff.[footnoteRef:4] [4: Knutsen, Erik S., Ambiguous Cause-in-Fact and Structured Causation: A Multi-Jurisdictional Approach: p. 251. TEXAS INTERNATIONAL LAW JOURNAL, (Volume 38:249)]

A. Proximate Cause

The most widely quoted, and what is said to be the best definition of proximate cause is that it is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred. [footnoteRef:5] In the case of Bataclan vs. Medina[footnoteRef:6], the Supreme Court provides for a more comprehensive definition of proximate cause which provides that, the proximate legal cause is that acting first and producing the injury, either immediately or by settling other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain affecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as ordinarily prudent and intelligent person, have reasonable ground to expect at the moment his act or default that an injury to some person might probably result therefrom. This definition of proximate cause includes the element of foreseeability. Foreseeability involves the question of probability. The Supreme Court explain that there is negligence if a prudent man in the position of the tortfeasor would have foreseen that the effect harmful to another was sufficiently probable to warrant his conduct or guarding against its consequence.[footnoteRef:7] (cite specific event in this case) [5: Aquino, Timoteo B., Torts and Damages, 2013 Edition, p. 317] [6: Bataclan vs. Medina, G.R. No. L- 10126] [7: Picart v. Smith, G.R. No. L-12219, March 15, 1918, 37 Phil. 809]

Philippine Bank vs. Court of Appeals[footnoteRef:8] also defines proximate cause which included the element of foreseeability which goes this way: [8: 234 SCRA 435 (1994)]

The concept of proximate cause is well defined in our corpus of jurisprudence as any cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which would not have occurred and from which it ought to have been foreseen or reasonably anticipated by a person of ordinary case that the injury complained of or some similar injury, would result therefrom as a natural and probable consequence.

It is believed that these definitions, which include the element of foreseeability, are misleading and inconsistent with the provisions of the New Civil Code. The actor is liable for the damages which resulted from his acts, whether the same is foreseen or unforeseen.[footnoteRef:9] [9: Aquino, Timoteo B., Torts and Damages, 2013 Edition,p. 318]

B. Proximate cause distinguished from other terms

i. Distinguished from Remote Cause.

The proximate cause is distinguished from remote cause which is defined as that cause which some independent force merely took advantage of to accomplish something not the natural effect thereof. A remote cause cannot be considered the legal cause of the damage. [footnoteRef:10] [10: Aquino, Timoteo B.,Ibid.]

Indeed, not all causes that occur prior to the damages can be considered proximate. For example, in the lobby of the second floor of a building, there are several flower pots placed therein which if it will fall may cause injury to someone walking in the first floor underneath. Juan, a janitor of the building while cleaning that lobby accidentally shoves one of the flower pots and causes it to fall harming a woman standing in the first floor just below the lobby where the flower pots exactly are. If we follow the theory that causes prior to the damage be considered proximate then it would lead to an absurd conclusion that the owner of the building who placed the flower pots in that lobby would be held liable. Thus, a remote cause cannot be considered the legal cause of the damage.

ii. Distinguish from Nearest Cause

The word proximate is defined as being in immediate relation with something else; next and near.[footnoteRef:11] Hence, the impression that is being given by the word is that it is the nearest cause. Contrary to the impression being given by the term, however, proximate cause is not necessarily the nearest cause. Proximate cause is not necessarily the last link in the chain of events but that which is the procuring efficient and predominant cause.[footnoteRef:12] As the Supreme Court in one case, the requirement is that the act was the proximate cause, not implying, however, as might be inferred from the word itself, the nearest in point of time or relation, but rather the efficient cause, which maybe the most remote of an operative chain. It must be that sets the other in motion and is to be distinguished from a mere pre-existing condition upon which the effective cause operates, and must have been adequate to produce the resultant damage without the intervention of an independent cause.[footnoteRef:13] [11: Websters Dictionary, 1992 Ed.] [12: Pennsylvania Fire Ins. Co. V. Sikes, 166 ALR 375, 196 Okla. 137, 168 P2d 1016. ] [13: Aquino, Timoteo B., Torts and Damages, 2013 Edition, p. 321]

This rule is illustrated in Rodrigueza vs. Manila Railroad Company.[footnoteRef:14] In the said case, embers were negligently emitted from one of the trains of the defendant resulting in the fire in one of the houses near the tracks (house 1). Because of the wind, fire was communicated to another house (house 2) and then to another (house 3). One of the arguments of the railroad company in trying to escape liability to the owners of houses 2 and 3 is that the fire did not come directly from its train but from house 1. The Supreme Court rejected the argument ruling that what was important was the admitted fact that the fire originated in the negligent acts of the defendants and the circumstance that fire may have been communicated to the two other houses through the first house instead of having been directly communicated from the locomotive through the action of the wind, is immaterial. [14: G.R. No. L-15688, November 19, 1921]

iii. Effects of Concurrent Causes

The proximate cause is not necessarily the sole cause of the accident. The defendant is still liable in case there are concurrent causes brought about by acts or omission of third persons. The actor is not protected from liability even if the active and substantially simultaneous operation of the effects of a third persons innocent, tortuous or criminal act is also a substantial factor in bringing about the harm so long as the actors negligent conduct actively and continuously operate to bring about harm to another.[footnoteRef:15] [15: Africa v. Caltex, G.R. No. L-12986, March 31, 1966]

In the same vein, the primary cause remains the proximate cause even if there is an intervening cause which merely cooperated with the primary cause and which did not break the chain of causation. These rules were summarized in the case of Far Eastern Shipping Company v. Court of Appeals[footnoteRef:16], where the Supreme Court held that: [16: G.R. No. 130068, October 1, 199 and G.R. No. 130150, October, 1998 (consolidated case)]

It may be said, as a general rule, that negligence in order to render a person liable need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes other than plaintiffs, is the proximate cause of the injury. Accordingly, where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that the negligence of the person charged with injury is an efficient cause without which the injury would not have resulted to as great an extent, and that such cause is not attributable to the person injured.

To find out further about proximate cause, two tests will be discussed in the succeeding sections. The cause-in-fact test and policy test are introduced by common law to assist our courts and as well as our lawyers with their clients in determining proximate cause of an injury and matters which should be considered in each and every case.

III. TESTS OF PROXIMATE CAUSE

A. Cause-in Fact Doctrine

Under traditional tort analysis, "cause in fact" has long been an essential element in finding a defendant liable for a plaintiff's injury. Tort theory generally has required that a plaintiff identify that the defendant's act, omission, product, or dangerous animal was sufficiently connected to the plaintiff's injury. By requiring that the plaintiff prove identification and causation before a defendant is required to pay for a plaintiff's injuries, tort law satisfies society's notion of justice.[footnoteRef:17] [17: Zwier, Paul J., "CAUSE IN FACT" IN TORT LAW- A PHILOSOPHICAL AND HISTORICAL EXAMINATION; Volume 31,p.769: http://via.library.depaul.edu/cgi/viewcontent.cgi?article=2326&context=law-review]

Cause-in-fact is traditionally considered to be less contentious and more predictable than proximate cause. Indeed, many torts scholars and fact finders argue that cause-in-fact is a straightforward question of common sense.[footnoteRef:18] Around the turn of the twentieth century, however, courts divided the causation issue into two distinct inquiries: a determination of proximate or legal cause, and cause in fact. This dual analysis was viewed as demonstrating the courts' increased proficiency in analyzing the separate causes that produced injuries to the plaintiff." The cause in fact analysis focused on possible causes of the injury before an inquiry into legal or proximate cause proceeded. This analytical separation did little, however, to clearly define the distinctive characteristics of the cause in fact element." Although a number of causes for an injury could exist, the courts reserved inquiry into these causes until after a determination of whether a defendant was sufficiently connected to the injury."[footnoteRef:19] [18: Knutsen, Erik S., Ambiguous Cause-in-Fact and Structured Causation: A Multi-Jurisdictional Approach: p. 252. TEXAS INTERNATIONAL LAW JOURNAL, (Volume 38:249): http://www.tilj.org/content/journal/38/num2/Knutsen249.pdf] [19: Zwier, Paul J., "CAUSE IN FACT" IN TORT LAW- A PHILOSOPHICAL AND HISTORICAL EXAMINATION; Volume 31,p.774, DE PAUL LAW REVIEWER, (Vol. 31:769): http://via.library.depaul.edu/cgi/viewcontent.cgi?article=2326&context=law-review]

Unfortunately, the two causation inquiries often commingled, and failure to clearly define proximate cause yielded further confusion. The most common method for distinguishing the two inquiries treated cause in fact as a question for the trier of fact, and proximate cause as a question of law."

Cause- in - fact analysis, however, necessitated more than a simple factual inquiry established through production of testimony." From his understanding of, and experience with, the world, the trier of fact was required to make a judgment that certain effects follow certain antecedents. To ascertain whether a cause in fact existed, the trier of fact's "judging capacity" needed to be furnished with enough evidentiary facts to enable him, based on his experience, to rationally connect the defendant's act with the plaintiff's injury, in order that the trier of fact could label the defendant's act as the cause."[footnoteRef:20] [20: Zwier, Paul J., "CAUSE IN FACT" IN TORT LAW- A PHILOSOPHICAL AND HISTORICAL EXAMINATION; Volume 31,p.776, DE PAUL LAW REVIEWER, (Vol. 31:769). @ http://via.library.depaul.edu/cgi/viewcontent.cgi?article=2326&context=law-review]

The problem with cause in fact is related intimately to the philosophical search for ultimate cause. In determination of causality, a greatest philosopher, David Hume observed in Inquiry Concerning Human Understanding that our knowledge of cause and effect is not, in any instance, attained by reasoning a priori, but arises entirely from experience, when we find that any particular objects are constantly conjoined with each other. Thus, our notion of causality according to Hume is not some mysterious quality in the objects themselves. Rather, we consider that there is such causality because we have hitherto observed that objects of those two types are regularly conjoined, we expect them to go together on this occasion too. John Stuart Mill refined Humes account of causality. He observed in A System of Logic that the invariable antecedent is termed the cause and the invariable consequent, the effect. Hence, universality of the law of causation consists in this, the every consequent is connected in this manner with some particular antecedent or set of antecedents. Legal theorists Hart and Honore elaborated on the theories of David Hume and John Stuart Mill. Hart and Honore explained that when we look for the cause of an occurrence, we are looking for something, usually earlier in time, which is abnormal or an interference in the sense that it is not present when things are as usual.[footnoteRef:21] [21: Aquino, Timoteo B., Torts and Damages, 2013 edition, p.331]

Although the analytical element of cause in fact has not always been specifically identified in common law torts," courts continually insisted on some measure of causation. Thus courts have developed but-for test and substantial factor test to determine cause in fact.

B. Different Cause-in-fact Tests

i. But-for Test or Sine Qua Non Test

The majority of common law cause-in-fact inquiries involve a courts application of one of two well-established torts principles: the but for test or the substantial factor test of causation. The but for test is the simpler of the two and is used for the majority of factual circumstances. A plaintiff in a negligence action must prove on a balance of probabilities that, but for the defendants negligent conduct, the plaintiff would not have suffered injury. Fact patterns which fit the but for test of causation are those where it can be established on a balance of probabilities that the defendants negligence was a necessary component of the cause that gave rise to the plaintiffs injury. In most negligence actions where one plaintiff sues one negligent defendant, that defendants negligence is usually one of two or more equally competing and mutually exclusive possible causes. A court weighs the evidence of causation to determine whether or not, on a balance of probabilities, it can be proven that the defendant caused the plaintiffs injury.[footnoteRef:22] [22: Aquino, Timoteo B., Torts and Damages, 2013 Edition, p.]

The but for test is also known as the sine qua non test. Sine qua non is a Latin term meaning a necessary requirement. The defendants action (inaction) was a necessary requirement for the plaintiff to be injured. If the defendants action is not a necessary requirement for an injury to occur, then the defendant was not the cause in fact of the injury.

For example, Timothy stopped at the four-way stop. Lee did not see the stop sign at the same intersection. Timothy proceeds into the intersection. Lee did not stop and plows into Timothy. But for Lee running the stop sign, Timothy would not have injured.[footnoteRef:23] [23: Morissette, Emily Lyn, Personal Injury and the Law of Torts for Paralegals; Chapter 4: Third Element of Negligence: Causation of Injury; p. 44]

A further example, if the plaintiff was injured because a portion of a negligently constructed wall that collapsed hit him, the negligence in the construction of the wall is the cause in fact of the injury because the injury to the plaintiff would not have resulted had there been no negligence on the part of the defendant. On the other hand, if the object that fell from the window of the same building hit the plaintiff, the negligent construction of the wall is not the cause in fact of the injury the injury could not have been avoided in the absence thereof.[footnoteRef:24] [24: Aquino, Timoteo B., Torts and Damages;2013 Edition, p. ]

Another example would be, Ernie is sitting in the law library, looking at a rare legal manuscript. He pulls out a can of cola he concealed in his backpack and brought into the library. He sips the cola while reviewing the document. When he goes to grab the open can of cola, he accidentally knocks it over, destroying the rare document. But for Ernie knocking over the can of soda, the document would not have been destroyed.

More than one defendants action might be the reason why the plaintiff is harmed. Two actions might be necessary for an accident to occur. The but for test does not require there be only one action that brings about an injury. However, if there is more than one action, then each action must be a but for cause (necessary cause) of the injury. The more contributors to an injury and the more events necessary to cause an injury, the less helpful the but-for test is. The but-for test should not be used when there are two or more causes to an injury, either one of which, by itself, would have been enough to cause the injury.

The Minnesota Supreme Court, in Anderson v. Minneapolis, Saint Paul & Sault Sainte Marie Railway, adopted a test which was designed to better handle the determination of cause in fact in cases involving multiple causes. This test considers whether the defendant's action was a "material element" or a substantial factor in producing the plaintiff's injury.[footnoteRef:25] [25: Zwier, Paul J., "CAUSE IN FACT" IN TORT LAW- A PHILOSOPHICAL AND HISTORICAL EXAMINATION; Volume 31,p.776, DE PAUL LAW REVIEWER, (Vol. 31:769). @ http://via.library.depaul.edu/cgi/viewcontent.cgi?article=2326&context=law-review, p. 779-780]

ii. Substantial Factor Test

Similar to the "but for" test, this substantial factor or material element test included the notion that the defendant's act or object needed to be possessed by the defendant and produced the plaintiff's injury. According to the Minnesota Supreme Court and a majority of courts that adopted Minnesota's approach, the substantial factor test was the minimum requirement for assessing liability. [footnoteRef:26] [26: Zwier, Paul J., "CAUSE IN FACT" IN TORT LAW- A PHILOSOPHICAL AND HISTORICAL EXAMINATION; Volume 31,p.776, DE PAUL LAW REVIEWER, (Vol. 31:769). @ http://via.library.depaul.edu/cgi/viewcontent.cgi?article=2326&context=law-review, p. 780]

The substantial factor test asks the following: was the defendant a substantial factor, or big contributor, in causing the injury to the plaintiff? The defendant will be liable for the injuries to the plaintiff where the defendant was the substantial factor in causing the injury. The substantial factor test, unlike the but-for test, addresses the issue of concurrent causes. Concurrent causes are causes acting together to cause the injury, although each cause by itself would not have caused the injury. If two causes combine into one harm, one which cannot be cleanly divided, then each cause will be considered as a substantial factor of the harm. For example if two fires merge to cause an injury, the test to apply would be the substantial factor test rather than the but-for test.

In Summer vs. Tice, there were two hunters, who separately fired their guns at the same time in the direction of the plaintiff. The plaintiff was struck in the eye. Which defendant should be held liable for the injury? How can liability be determined? Is it not a fifty-fifty chance where one defendant or the other shot the plaintiff? The court determined the plaintiff was not in the best position to determine which defendant was at fault. Therefore, the court ruled the burden of proof shifted to the defendant to show each of them was not liable. The burden of proof requires a party, in this case, the defendant to prove a fact in dispute between the parties. The defendants could not prove which defendant was more liable, so both were found liable. The ruling prevented the defendants, who were both negligent, from avoiding responsibility from their negligence. [footnoteRef:27] [27: Morissette, Emily Lyn, Personal Injury and the Law of Torts for Paralegals; Chapter 4: Third Element of Negligence: Causation of Injury; p. 45]

As earlier stated, the substantial factor test is important in cases where there are concurrent causes. Here the issues are not factual but conceptual: When are harms attributable to the defendant whose own actions are combined with those of other persons and natural events? The application of the but-for test will lead to an absurd conclusion if concurrent causes are involved. For example, the plaintiff was injured when he fell from a horse, which was frightened by two approaching vehicles. If the drivers of both vehicles, A and B, were negligent and either vehicle was sufficient to frighten the horse, the resort to the but-for test will result to an absurd conclusion that the negligence of either driver cannot be considered the cause in fact of the injury because the damage have likewise resulted if only one driver was negligent. It cannot be said that the damage would not have resulted had there been no negligence on the part of A. It cannot likewise be said that damage would not have resulted had there been no negligence on the part of B. However, under the substantial factor test, the concurrent causes will still be considered as the cause-in-fact of the injury because the negligence of both A and B are substantial factors in bringing about the injury. [footnoteRef:28] [28: Aquino, Timoteo B., Torts and Damages, 2013 Edition,p.]

Another case in point, the but for test is unworkable in sorting out the cause-in-fact of damage to a plaintiffs property resulting from two separately burning fires that converge together to cause indivisible damage. If one fire is caused by the defendants negligence and one is caused by natural circumstances, a court is not aided by asking whether, but for the one fire, the plaintiff would not have suffered damage. The second fire exists and makes dividing the source of causation impossible. Therefore, a court uses the substantial factor test of causation to determine if a defendants negligent conduct was a material element, or substantial factor, in bringing about the injury of the plaintiff. The role of the defendants negligence in bringing about this injury must be beyond the de minimus range in order to be considered the cause of the injury.

iii. Necessary Element of Sufficient Set (NESS) Test

Another alternative test is the so called NESS Test. The NESS test is especially effective in solving problems regarding concurrent causes. Under this test, the negligent act or omission, is a cause-in- fact of the damage if it is a necessary element of a sufficient set (NESS). The test is based on the concept of causation by David Hume and Stuart Mill, and systematically elaborated for legal purposes by professors Hart and Honore in Causation in Law and Professor Wright in Causation in Tort Law. [footnoteRef:29] [29: John G. Fleming, The Law of torts, 7th Edition,p. 173]

Professor Fleming restated the test as follows : Whether a particular condition qualifies as casually relevant factor will depend on whether it was necessary to complete a set of conditions jointly sufficient to account for the given occurrence. A necessary condition for the occurrence of a specified event is a circumstance in whose absence the event cannot occur while a sufficient condition for the occurrence of an event is a circumstance in whose presence the event must occur.[footnoteRef:30] [30: Irving Copi and Carl Cohen, Introduction to Logic, 10th Edition,pp. 496-497]

However, what is considered as a necessary cause is not one that occurs in vacuum. Under the NESS Test, it is acknowledged that the candidate cause is just part of the sufficient set. Professor Richard W. Wright explained the NESS Test in this wise:[footnoteRef:31] [31: Aquino, Timoteo B., Torts and Damages, 2013 Edition, p. 337]

The basic concept of causation is formalized in the NESS (necessary element of a sufficient set) test of causal contribution, which in its full form states that a condition contributed to some consequence if and only if it was necessary for the sufficiency of a set of existing antecedent conditions that was sufficient for the occurrence of the consequence. The relevant notion of sufficiency is not merely logical or empirical, but rather requires each element of the applicable causal generalization, in both the antecedent (if part) and the consequent (then part) must have been in actual existence on the particular occasion.

The NESS test subsumes and integrates the Restatements necessary condition test and its independently-sufficient condition test, which are merely corollaries of the NESS test that apply in certain types of situations. The NESS test reduces down to the necessary condition (but for) test if there was only one set of conditions that was or would have been sufficient for the occurrence of the consequence on the particular occasion, or, if there was more than one such set, if the condition was necessary for the sufficiency of each of the sets. Yet the NESS test is more inclusive than the but-for test. A condition was a cause under the NESS test if it was necessary for the sufficiency of any actually sufficient set, even if, due to other duplicative or pre-empted set of conditions, it was not, as acquired by the but-for test, necessary in the circumstances for the consequence.

B. Policy Test or Cut-off Test

A finding that the defendants negligence was the cause in fact of the damage to the plaintiff will not necessarily result in a finding that the same negligence is the proximate cause of the damage or injury to the plaintiff. The law, as a matter of policy, may limit the liability of the defendant to certain consequences of his action. If the damage or injury to the plaintiff is beyond the scope or limit of the liability fixed bylaw, the defendants conduct cannot be considered the proximate cause of the damage. Such scope or limit of liability is determined by applying what are known as policy tests.

Thus, in deciding negligence cases, it is likewise necessary to determine the policy tests adopted in a particular jurisdiction. The different policy tests that are being used to determine the extent of the defendants liability for negligence include: a) foreseeability test; b) natural and probable consequence test; c) natural and ordinary or direct consequences test; d) hindsight test; e) orbit of risk test; and f) the substantial factor test.[footnoteRef:32] [32: Aquino, Timoteo B., Torts and Damages, 2013 Edition, p. 340]

The above-specified policy tests may be divided into two (2) groups. The first group involves the element of foreseeability while the other does not require that the injury is within the foreseeable risk created by the defendant. The first may be referred to as the foresight perspective while the other as the directness perspective. [footnoteRef:33] The two perspectives were briefly explained in this wise: [33: Epstein, p. 468]

Analytically, the problem of proximate cause in turn can be addressed in two distinct ways. One possibility is to ask whether the chain of events that in fact occurred was sufficiently foreseeable, natural, or probable at the outset for the defendant to be held liable for the ultimate harm that ensued, assuming the causation in fact can be established. That judgment is made from the standpoint of the defendant at the time the tortuous conduct was committed. The second approach starts with the injury and works back towards the wrongful action of the defendant, seeking to determine whether any act of a third party or the plaintiff, or any event, severed the causal connection between the harm and the defendants wrongful conduct. Here the question is only whether, when all the evidence is in, it is permissible to that the defendant did it, that is, brought about the plaintiffs harm.[footnoteRef:34] [34: Epstein, Ibid. ]

Under the foreseeability test and other similar tests like the natural and probable consequence test, the defendant is not liable for unforeseeable consequences of his acts. The liability is limited within the risk created by the defendants negligent act. Direct consequence test, on the other hand, makes the defendant liable for damages that are beyond the risk. Direct consequences are those which follow in the sequence from the effects of the defendants act upon conditions existing and forces already in operation at the time, without the intervention of any external forces, which come into active operation later.[footnoteRef:35] [35: Prosser and Keeton, p. 294]

I. Foreseeability Test

In most personal injury cases, the answer to the question "Who was at fault?" comes down to figuring out who was negligent.

Negligence is the failure, on the part of the person causing the injury, to use the reasonable amount of care that is required in a particular situation. In order to prove negligence, you have to establish that the person causing the injury was not only the actual cause of the injury, but also the proximate cause (or legal cause), of the injury.

In order to be liable for negligence, the type of harm that occurred must have been foreseeable. However, the extent of the harm is not limited by what was or was not foreseeable. In this article, well discuss some of the issues that may arise with respect to proximate cause and foreseeability, when you're trying to prove fault in a personal injury case.

What is Foreseeability?

Foreseeability is the leading test that is used to determine proximate cause. The foreseeability test basically asks whether the person causing the injury should have reasonably foreseen the general consequences that would result because of his or her conduct.

Foreseeability and Proximate Cause

The law limits the scope of liability based upon the foreseeability of the type of the harm and the manner of the harm, but not the extent of the harm. In this section, we'll explain the distinctions.

A. Unforeseeable Type of Harm. A person who causes injury to another is not liable if the type of harm does not foreseeably flow from the negligent act.

For example, if Damon drops a glass bottle on the floor and does not clean it up, Damon would be liable for the injuries caused to anyone who cut themselves on the glass. However, if a freak fire is somehow caused by sunlight that is magnified through the broken glass, it is arguable that Damon would not be liable for injuries caused by the fire because they are not a foreseeable type of harm that would flow from the negligent act. In other words, a fire is not a foreseeable result that might stem from leaving shards of glass on the ground.

B. Unforeseeable Manner of Harm. A person who causes injury to another person is not liable for a superseding cause when the superseding cause itself was not foreseeable. In such a situation, it is said that the superseding act breaks the causal chain between the initial negligent act and the injury. That means the person who committed the initial negligent act will be relieved of liability.

For example, if David left a candle burning in his apartment while he was at work, and, subsequently, a burglar broke into his apartment and knocked the candle over, burning down the entire building, David would likely not be liable for injuries sustained because the burglar was an unforeseeable, superseding cause. In reality, the issue would be argued by both sides of the case -- the people who suffered losses from the fire arguing that the burglar's presence was foreseeable, and David arguing that it was not.

Other examples of superseding causes that are usually deemed unforeseeable:

1. acts of God (i.e., earthquakes)

2. criminal acts of third persons (i.e., burglary), and

3. intentional torts of third persons (i.e., assault, battery, false imprisonment).

Examples of superseding causes that are typically deemed foreseeable (so that the defendant does not escape liability):

1. harm caused by rescuers (i.e., firefighters or other people that come to the injured persons aid)

2. ordinary negligence of health care providers (i.e., doctors and nurses), and

3. disease or subsequent injury that is sustained as a result of the injured person being in a weakened condition.

C. Unforeseeable Extent of Harm. A person who causes injury to another person is liable for the full extent of the harm, whether or not the extent of the harm is foreseeable. For example, if Dallas is negligently driving through a small, suburban town and collides with Pariss Ferrari, Dallas is liable for the full amount of damage caused to the car, despite the fact that it would not be foreseeable to see such a car driving through a small, suburban town.[footnoteRef:36] [36: Tikriti, Amir; Foreseeability and Proximate Cause in an Injury Case; http://www.alllaw.com/articles/nolo/personal-injury/foreseeability-proximate-cause.html; ]

The foreseeability test is sometimes used in conjunction with the natural and probable consequence test, which, although expressed in different terminology, is closely related, if not an essentially a similar test.[footnoteRef:37] [37: Sangco, J Cesar S., Philippine Law on Torts and Damages, Volume 1; https://books.google.com.ph/books?id=lIJuucgYpAsC&pg=PA113&lpg=PA113&dq=hindsight+test,+torts&source=bl&ots=hvPg3E0-Rb&sig=6ObKUtaOmwGRbJqCMQU_Iixu8cc&hl=en&sa=X&ei=gEsKVdS3IojW8gXQoYCoCg&ved=0CDEQ6AEwAw#v=onepage&q=natural%20and%20probable%20consequences%20doctrine%2C%20torts%20and%20damages&f=false, ]

ii. Natural and Probable Consequence Test

The test of proximate cause which has been stated and applied more often than any other is that which determines an injury to be the proximate result of negligence only where the injury is the natural and probable consequence of the wrongful act or omission. The natural consequence of an act is the consequence which ordinarily follows it. A probable consequence is one which is more likely to follow than fail to follow its supposed cause but it need not be one which necessarily follow such cause. Where this test is used, ii is not enough to prove that an accident is the natural consequence of the negligence. It must also have been the probable consequence. Thus there was lack of causal relationship between the plaintiffs injury and the alleged negligence of the defendant, the operator of the market, in grabbing the robber and attempting to disarm him, where after the struggle had ended, the robber had commenced his flight, and shot the plaintiff, since the robbers act was neither a natural and probable consequence of the defendants resistance, although if the gun has been discharged during the struggle there would have been a causal relationship. In order to warrant a finding of negligence or an act not amounting to wanton wrong, was the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence. Where there is danger of a particular injury which actually occurs, it must be said that the injury is the usual, natural and probable result of the act exposing the person or thing injured to the danger.[footnoteRef:38] [38: Sangco, Caesar J, Ibid.]

iii. Ordinary and Natural or Direct consequence Test

The extent of the actors liability is for all consequent damage naturally flowing from such conduct, whether such damage were reasonably to be anticipated or not. This test states, as a matter of legal policy, that if a negligence is a cause in fact of an injury under the criteria previously discussed, the liability of the wrongdoer extends to all injurious consequences. Such based is based on the principle that in tort the wrongdoer is liable for all the consequences that naturally flow from his wrongful act, provided only that they are not too remote, and that as far as proximate cause is concerned the question is not whether the damage was foreseen or foreseeable, but rather, where in fact it resulted as a direct consequence of the defendants act. According to this view, reasonable anticipation has no logical connection with causation. It is not the consequence that the defendant as a reasonably prudent person should have foreseen as within the risk of his conduct which controls the limitation of his liability, but the risk that the court, after the conduct has taken place and the injury has been suffered, considers shall fall within the scope- or orbit of the defendants duty under the law.[footnoteRef:39] [39: Sangco, J Cesar S., Philippine Law on Torts and Damages, Volume 1; https://books.google.com.ph/books?id=lIJuucgYpAsC&pg=PA113&lpg=PA113&dq=hindsight+test,+torts&source=bl&ots=hvPg3E0-Rb&sig=6ObKUtaOmwGRbJqCMQU_Iixu8cc&hl=en&sa=X&ei=gEsKVdS3IojW8gXQoYCoCg&ved=0CDEQ6AEwAw#v=onepage&q=natural%20and%20probable%20consequences%20doctrine%2C%20torts%20and%20damages&f=false; p 111]

iv. Hindsight Test

Another test which seems to eliminate foreseeability as an element of proximate cause and which has been referred to as the hindsight test, has been stated as follows: A party guilty of negligence or omission of duty is responsible for all the consequences which a prudent and experienced party fully acquainted with all the circumstances which in fact exist, whether they could have ascertained by reasonable diligence, or not, would have thought at the time of the negligent act as reasonably possible to follow, if they have been suggested to his mind. Seemingly, these words mean that a wrongdoer is responsible for all the consequences which a prudent man charged with knowledge of all the facts would have thought possible to follow from his negligent act and they appear to obviate foreseeability as an element of proximate cause. [footnoteRef:40] [40: Sangco, J Cesar S., Philippine Law on Torts and Damages, Volume 1; https://books.google.com.ph/books?id=lIJuucgYpAsC&pg=PA113&lpg=PA113&dq=hindsight+test,+torts&source=bl&ots=hvPg3E0-Rb&sig=6ObKUtaOmwGRbJqCMQU_Iixu8cc&hl=en&sa=X&ei=gEsKVdS3IojW8gXQoYCoCg&ved=0CDEQ6AEwAw#v=onepage&q=natural%20and%20probable%20consequences%20doctrine%2C%20torts%20and%20damages&f=false]

v. Orbit of the Risk Test

The orbit of the risk doctrine as formulated in the prevailing opinion in the celebrated Plasgraf case was intended to be a test of duty and not a test of proximate cause, an issue which was not reached by the court since it disposed of the case by determining that the defendant under the circumstances had breached no duty that was owed to the plaintiff.

The Supreme Court in Palsgraph v. Long Island R.R. Co.[footnoteRef:41] held that that the conduct of Long Island Railroads guard was wrongful in relation to the man carrying the parcel, but not in relation to Palsgraf standing far away. No one was on notice that the package contained fireworks which when dropped could harm a person as far from the zone of danger as Palsgraf. To find negligence there must first be a finding that a duty was owed and breached, and that the injury could have been avoided if the defendant had been following that duty. The orbit of the danger or risk associated with a danger or risk is that which a reasonable person would foresee. Even if the guard had intentionally taken the package and thrown it he would not have threatened Palsgrafs safety from the appearances of the circumstances to a reasonable person. Long Island Railroads liability for an inadvertent or unintentional act cannot be greater than it would be if the act had been intentional. [41: Palsgraf v. Long Island R.R. Co.,Ct. of App. of N.Y., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928)]

If foreseeable risk to the plaintiff created a duty which the defendant breached, liability is imposed for any resulting injury within the scope or orbit of such injury, it is not the unusual nature of the act resulting in injury to plaintiff that is the test of foreseeability, but whether the result of the act is within the ambit of the hazards covered by the duty imposed upon the defendant.[footnoteRef:42] [42: Sangco, J Cesar S., Philippine Law on Torts and Damages, Volume 1; https://books.google.com.ph/books?id=lIJuucgYpAsC&pg=PA113&lpg=PA113&dq=hindsight+test,+torts&source=bl&ots=hvPg3E0-Rb&sig=6ObKUtaOmwGRbJqCMQU_Iixu8cc&hl=en&sa=X&ei=gEsKVdS3IojW8gXQoYCoCg&ved=0CDEQ6AEwAw#v=onepage&q=natural%20and%20probable%20consequences%20doctrine%2C%20torts%20and%20damages&f=false ; page 114]

IV. APPLICABILITY OF CAUSE-IN-FACT AND

POLICY TEST IN THE PHILIPPINE JURISDICTION

The determination of the applicable test is likewise a problem in Philippine jurisdiction. The problem is being compounded by the fact that there is little literature on proximate cause. Examinations of decisions of the Supreme Court and the Court of Appeals do not immediately reveal the applicable rule because more often than not, the discussion of proximate cause contains mere salutary citations of definitions and previous decisions.[footnoteRef:43] [43: Aquino, Timoteo B., Torts and Damages, 2013 Edition, p. 343]

Nevertheless, it had also been acknowledge that the determination of proximate cause depends on whether public policy requires that the plaintiff or defendant should bear the loss.[footnoteRef:44] The difference between this jurisdiction, however, with that of other jurisdictions is that the New Civil Code contains a chapter on Damages which specifies the type of damage for which the defendant may be held liable as well as the limit to such liability. In other words, the policy on the kind of damage to be awarded to the plaintiff is already expressed in statutory provisions.[footnoteRef:45] [44: Reyes and Puno, p. 167] [45: Aquino, Timoteo B, Ibid. ]

A. Applicable Cause-in-Fact Test in the Philippines

There is no statutory provision in this jurisdiction that mandates the use of a particular cause-in fact test. However, there is no question that the but-for test is being applied in this jurisdiction. The definition of proximate cause includes a statement that indicates the applicability of the but-for test. The definition of Bataclan v. Medina[footnoteRef:46] includes a statement that the cause should be that without which the damages would not have resulted. [46: G.R. No. L- 10126]

The substantial factor test is likewise being applied in this jurisdiction. The substantial factor test as it is contemplated in the Restatement, Second, Torts of the American Law Institute had been cited in cases decided in this jurisdiction.[footnoteRef:47] The very the same definition adopted in Bataclan reflects the observation of one legal writer that the issue of proximate causation asks whether the defendants conduct could be regarded as a substantial factor in bringing about plaintiffs harm, and the inquiry is often translated into one that asks whether any of the human actions or natural events that occur after defendants but before the plaintiffs harm severs the causal connection between them.[footnoteRef:48] [47: See Philippine Rabbit v. Court of Appeals, G.r. No. 66102, August 30, 1990] [48: Epstein, p.468]

It is believed that the NESS test can also be applied in multiple causation cases. Since there is no statutory provision that fixes the applicable test, there is room for the application of NESS test. The NESS test is gaining wider acceptance because it is even reflected in the latest version of the Restatement of torts. In Restatement (Third) of Torts, if a tortuous conduct of a tortfeasor fails the but-for test because there is another set of conduct also sufficient to cause the harm, the tortfeasors conduct is still a cause in fact or factual cause.[footnoteRef:49] [49: Aquino, Timoteo B., Torts and Damages, 2013 Edition,p.344]

B. Applicable Policy Test in the Philippines

There is a conflict of opinion regarding the applicability of the foresight perspective in determining proximate cause. The ruling in the early case of Algarra v. Sandejas[footnoteRef:50] indicates the applicability of the foreseeability test: [50: G.R. No. L-8385 ,March 24, 1914]

The liability of the present defendant includes only those damages which were foreseen or may have been foreseen at the time of the accident, and which are necessary and immediate consequence of his fault. In discussing the question of damages under the civil law, Gutierrez (vol. 4, pp.64,65) says:

In the impossibility of laying down a surer rule, the Code understands known damages to be those which in the prudent discernment of the judge merit such a qualification, although their consequences may not be direct, immediate, inevitable.

If it is a question of losses occasioned through other causes, except fraud, and the contracting parties have not covenanted any indemnity for the case of non fulfilment, then the reparation of losses or damages shall only comprise those that are the necessary and immediate consequence of that fault. This rule may not be very clear, but is the only possible in a matter more of the domain of prudence than of law.

These authorities are sufficient to show that liability for acts ex delicto under the Civil Code is precisely that embraced within the proximate cause of the Anglo-Saxon Law of Torts.

The general rule as frequently stated, is that in order that an act or omission may be the proximate cause of an injury, the injury must be the natural and probable consequence of the act or omission and such as might have been foreseen by an ordinary responsible and prudent man, in the light of the attendant circumstances, as likely to result therefrom.

According to the later authorities foreseeableness, as an element of proximate cause does not depend upon whether an ordinarily reasonable and prudent man would or ought in advance to have anticipated the result which happened, but whether, if such result and the chain of events connecting it with the act complained of had occurred to his mind, the same would have seemed natural and probable and according to the ordinary course of nature. Thus as said in one case, A person guilty of negligence, or an unlawful act, should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, would at the time of the negligent or unlawful act have thought reasonable to follow, if they had occurred to his mind. (Wabash R. Etc. Co. V. Coker, 81 Ill. App. 60, 664; Cooley on Torts, sec. 15).

The view which I shall endeavour to justify is that, for the purpose of civil liability, those consequences, and those only, are deemed immediate, proximate, or, to anticipate a little, natural and probable, which a person of average competent and knowledge, being in the like case with the person whose conduct is complained of, and having the like opportunities of observation, might be expected to foresee as likely to follow upon such conduct. This is only where the particular consequence is not known to have been intended or foreseen by the actor. If proof of that be forthcoming, whether the consequence was immediate or not does not matter. That which a man actually foresee is to him, at all events, natural and probable (Webbs Pollock on Torts, p. 31).

Almost half a century thereafter, Justice J.B.L. Reyes clarified that the rule under the Old Civil code is the same as the rule in contracts. He explained in Silva vs. Peralta[footnoteRef:51] that: [51: 2 SCRA 1025 (1961)]

As to the award of damages, against Saturnino Silva, it is to be noted that while the latters liability was exta-contractual in origin, still, under the Civil Code in 1889, the damages resulting from a tort are measured in the same manner as those due from a contractual debtor in bad faith, since he must answer for such damages, whether he had foreseen them or not, just as he must indemnify not only for damnum emergens but also for lucrum cessans, as required by Article 1106. Article 1002 of the 1889 Civil Code of Spain formulated no standard for measuring quasi-delictual damages, the article merely prescribing that the guilty party shall be liable for the damages so done. This indefiniteness led modern civil law writers to hold that the standart set in Article 1106 and 1107, placed in the general rules on obligations rigen por igual para las contractuales y las extras contractuales, las preestablicidas y las que borten ex-lege de actos ilictos.(Roces Notes to Fisher) Los Daos Civiles y su Reparacin. (1927). Since liability for damages arises in either case from a breach of a pre-existing obligation (to behave without fault or negligence in case of quasi- delicts, and, in the case of contracts, to observe the conduct required by the stipulation), it is logical to conclude with Planiol that La reponsibilidad contractual y la extra contractual tienen el mismo fundamento, pou to que se hallan sujetas en principio a identicas reglas. (6 Planiol-Ripert, Derecho Civil, pp. 133, 207-208). [footnoteRef:52] [52: Aquino, Timoteo B., Torts and Damages, 2013 Edition, pp. 347-349.]

V. ANALYSIS/RECOMMENDATIONS

In view of the foregoing, causation of an injury as an element in negligence cases has been a matter which different scholars and diverse jurisdictions have been studied for a long time. Such studies continue to create different aspects of causation of an injury which have been or would be a basis in determining negligence in each and every case in different jurisdictions. Many tests have been used to determine causation of an injury which tests may be based on experiences, natural law, or varieties of laws in each country. Determination of proximate cause has been decided in different cases and different jurisdictions dependent upon the findings of each Courts or juries upon examining the particular facts and evidences adduced upon it. While other courts may use one type of tests in its jurisdiction to derive at a solution in a case the same may not be applicable in other jurisdictions. However, since natural law dictates, that each action or omission may have the same effects in two or more countries or jurisdictions, the Court in another country may refer or used the same test as applied by another Court in one State as it may deem applicable in a particular case within its jurisdiction.

Thus, the tests discussed above, cause-in-fact and policy tests and their different types, were used for so long in different jurisdictions in resolving negligence cases. Cause-in- fact test usually had been used to determine the cause of an injury created or as a result of a defendants action or omission towards the plaintiff. It determines whether or not indeed committed the act complained of by ascertaining whether the injury and the negligence of the defendant has a causal relationship. On the other hand, by determining cause-in-facts, does not necessarily mean that the defendants negligence is the proximate cause of such injury. The policy tests explains that, a defendant may be a cause-in fact of an injury but the law may limit or fix its liability and the court by practical considerations must at times determine the bounds of correlative rights and duties as well as the point beyond which the courts will decline causal connection. In other words, attendant facts and circumstances in a particular or given case must be measured in order to determine the degree of defendants negligence. There is no hard and fast rule in these cases. This gives us an idea that justice may not be at all times dispense by finding an alleged tortfeasor liable when his acts or omission is found to be a cause in fact but rather we must consider policy as a matter of law if not to negate liability of the defendant but to mitigate the same if called by circumstances of the case.

The Philippine jurisdiction had been using some of these tests to decide negligence cases despite the absence of a particular statutory provision to that effect. High accord should be given to our Courts in applying these tests in determining liability in negligence cases. It is also recommended that may be our Courts would try to study some of these test as they would certainly be helpful and applicable in our jurisdiction. Even though our New Civil Code already included chapter on damages which provides for specific type of damage which the defendant may be held liable, nevertheless, the foregoing tests as discussed may strengthen the disposition of negligence case if our Courts would endeavour to study them for a successful dispensation of justice.

VI. CONCLUSION

What are the things to be considered in order to obtain affirmative relief when we come across a situation where we will be proving negligence of someone? Are there factors which we could weigh against to fix or limit the liability of the tortfeasor after establishing that his action is the cause-in-fact of the injury?

These questions as posed in the introductory statement may now attain their satisfying answers.

Based on the above discussions, we come into conclusion that an injured person must always determine the cause of his injury, who causes his injury, and what are the factors which one way or another severs his injury. Action for damages may be futile if these instances cannot be proven or identified before an aggrieved person rests his case.Thus, it is but necessary that the plaintiff should know the defendant in the first place. The Courts cannot settle a case when in the first place there is no accused therein. In our jurisdiction of course, it is but the duty of the Lawyer to help his client to come up with answers to this questions and gather evidence to establish his case. On the other hand, a defendant may not be held liable for an act he has not committed or an allegation that he did an act which caused an injury to another will not be successful in the absence of proof thereto. More so, a defendants liability may be mitigated if warranted by facts of the case.

Therefore, in deciding negligence cases, our Courts always look at the factual circumstances in each case, the applicable laws and jurisprudence which will help them achieve a just and reasonable decisions. The Tort law, as applicable law in our jurisdiction will indeed achieve its major purposes: 1) to provide a special means for adjusting the rights of the parties who might otherwise take the law into their own hands, 2) deter wrongful conduct, 3) to encourage social responsible behaviour; 4) to restore injured parties to their original conditions, in so far as the law can do this by compensating them for their injury.[footnoteRef:53] [53: Aquino, Timoteo B., Torts and Damages, 2013 Edition, p.11]

VII. REFERENCES

1. Aquino, Timoteo B., Torts and Damages, 2013 Edition

2. Knutsen, Erik S., Ambiguous Cause-in-Fact and Structured Causation: A Multi-Jurisdictional Approach: p. 251. TEXAS INTERNATIONAL LAW JOURNAL, (Volume 38:249)

3. Morissette, Emily Lyn, Personal Injury and the Law of Torts for Paralegals; Chapter 4: Third Element of Negligence: Causation of Injury; p. 45

4.Palsgraf v. Long Island R.R. Co.,Ct. of App. of N.Y., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928)

5. Sangco, J Cesar S., Philippine Law on Torts and Damages, Volume 1; https://books.google.com.ph/books?id=lIJuucgYpAsC&pg=PA113&lpg=PA113&dq=hindsight+test,+torts&source=bl&ots=hvPg3E0-Rb&sig=6ObKUtaOmwGRbJqCMQU_Iixu8cc&hl=en&sa=X&ei=gEsKVdS3IojW8gXQoYCoCg&ved=0CDEQ6AEwAw#v=onepage&q=natural%20and%20probable%20consequences%20doctrine%2C%20torts%20and%20damages&f=false ; page 114

6. Tikriti, Amir; Foreseeability and Proximate Cause in an Injury Case; http://www.alllaw.com/articles/nolo/personal-injury/foreseeability-proximate-cause.html;

7. Zwier, Paul J., "CAUSE IN FACT" IN TORT LAW- A PHILOSOPHICAL AND HISTORICAL EXAMINATION; Volume 31,p.769: http://via.library.depaul.edu/cgi/viewcontent.cgi?article=2326&context=law-review