Editing Proximate cause (section)

==Other factors==

There are several competing theories of proximate cause.

===Foreseeability===
The most common test of proximate cause under the American legal system is foreseeability. It determines if the harm resulting from an action could reasonably have been predicted. The test is used in most cases only in respect to the type of harm. It is foreseeable, for example, that throwing a baseball at someone could cause them a [[Blunt trauma|blunt-force injury]]. But proximate cause is still met if a thrown baseball misses the target and knocks a heavy object off a shelf behind them, which causes a blunt-force injury.

This is also known as the "extraordinary in hindsight" rule.<ref>See [[Restatement of the Law|Restatement (Second) of Torts]].</ref>

In the United Kingdom, a "threefold test" of foreseeability of damage, proximity of relationship and reasonableness was established in the case of [[Caparo Industries plc v Dickman|Caparo v Dickman]] (1990) and adopted in the litigation between [[Lungowe v Vedanta Resources plc|Lungowe and others and Vedanta Resources plc]] (Supreme Court ruling 2019).<ref>House of Lords, [https://www.bailii.org/uk/cases/UKHL/1990/2.html Caparo Industries Plc v Dickman], UKHL 2, delivered 8 February 1990, accessed 3 January 2023</ref><ref>United Kingdom Supreme Court, [https://www.bailii.org/uk/cases/UKSC/2019/20.html Vedanta Resources PLC & Anor v Lungowe & Ors], UKSC 20, delivered 10 April 2019, accessed 3 January 2023</ref>

===Direct causation===
Direct causation is a minority test, which addresses only the metaphysical concept of causation.<ref>In re Arbitration Between Polemis and Furness, Withy & Co. Ltd., 3 K.B. 560 (1921)</ref> It does not matter how foreseeable the result as long as what the negligent party's physical activity can be tied to what actually happened. The main thrust of direct causation is that there are no intervening causes between an act and the resulting harm.  An intervening cause has several requirements: it must 1) be independent of the original act, 2) be a voluntary human act or an abnormal natural event, and 3) occur in time between the original act and the harm.

Direct causation is the only theory that addresses only causation and does not take into account the culpability of the original actor.

===Risk enhancement/causal link===

The plaintiff must demonstrate that the defendant's action increased the risk that the particular harm suffered by the plaintiff would occur. If the action were repeated, the likelihood of the harm would correspondingly increase.  This is also called '''foreseeable risk'''.

===Harm within the risk===

The harm within the risk (HWR) test determines whether the victim was among the class of persons who could foreseeably be harmed, and whether the harm was foreseeable within the class of risks.  It is the strictest test of causation, made famous by [[Benjamin Cardozo]] in ''[[Palsgraf v. Long Island Railroad Co.]]'' case under New York [[United States|state]] law.<ref>''Palsgraf v. Long Island Rail Road Co.'', 162 N.E. 99 (N.Y. 1928).</ref>

The first element of the test is met if the injured person was a member of a class of people who could be expected to be put at risk of injury by the action. For example, a pedestrian, as an expected user of sidewalks, is among the class of people put at risk by driving on a sidewalk, whereas a driver who is distracted by another driver driving on the sidewalk, and consequently crashes into a utility pole, is not.

The HWR test is no longer much used, outside of [[New York (state)|New York]] law. When it is used, it is used to consider the class of people injured, not the type of harm.{{Citation needed|date=September 2021}}  The main criticism of this test is that it is preeminently concerned with culpability, rather than actual causation.

===The "Risk Rule" ===
Referred to by the Reporters of the Second and Third Restatements of the [[tort|Law of Torts]] as the "scope-of-the-risk" test,<ref>See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL HARM § 29 cmt. d (Proposed Final Draft No. 1, 2005); RESTATEMENT (SECOND) OF TORTS § 281 cmt. g (1965).</ref> the term "Risk Rule" was coined by the University of Texas School of Law's Dean Robert Keeton.<ref>ROBERT E. KEETON, LEGAL CAUSE IN THE LAW OF TORTS 9–10 (1963).</ref> The rule is that “[a]n actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.”<ref>RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL HARM § 29 (Proposed Final Draft No. 1, 2005).</ref> Thus, the operative question is "what were the particular risks that made an actor's conduct negligent?" If the injury suffered is not the result of one of those risks, there can be no recovery.  Two examples will illustrate this principle:

* The classic example is that of a father who gives his child a loaded gun, which she carelessly drops upon the plaintiff's foot, causing injury. The plaintiff argues that it is negligent to give a child a loaded gun and that such negligence caused the injury, but this argument fails, for the injury did not result from the risk that made the conduct negligent. The risk that made the conduct negligent was the risk of the child accidentally firing the gun; the harm suffered could just as easily have resulted from handing the child an unloaded gun.<ref>Benjamin C. Zipursky, Foreseeability in Breach, Duty and Proximate Cause, 44 Wake F. L. Rev. 1247, 1253 (2009).  The full text of this article is available online at http://lawreview.law.wfu.edu/documents/issue.44.1247.pdf.  ''Accord Lubitz v. Wells'', 113 A. 2d 147 (Conn. 1955).</ref>
* Another example familiar to law students is that of the restaurant owner who stores [[rodenticide|rat poison]] above the grill in his luncheonette. The story is that during the lunch rush, the can explodes, severely injuring the chef who is preparing food in the kitchen. The chef sues the owner for negligence. The chef may not recover. Storing rat poison above the grill was negligent because it involved the risk that the chef might inadvertently mistake it for a spice and use it as an ingredient in a recipe. The explosion of the container and subsequent injury to the chef was not what made the chosen storage space risky.<ref>The exact etymology of this hypothetical is difficult to trace.  Adaptations are set forth and discussed in Joseph W. Glannon, The Law of Torts: Examples and Explanations (3d ed. 2005) and John C. P. Goldberg, Anthony J. Sebok, and Benjamin C. Zipursky, Tort Law: Responsibilities and Redress (2004) among others.</ref>

The notion is that it must be the risk associated with the negligence of the conduct that results in an injury, not some other risk invited by aspects of the conduct that in of themselves would not be negligent.<ref>"When defendants move for a determination that plaintiff’s harm is beyond the scope of liability as a matter of law, courts must initially consider all of the range of harms risked by the defendant’s conduct that the jury could find as the basis for determining that conduct tortious. Then the court can compare the plaintiff’s harm with the range of harms risked by the defendant to determine whether a reasonable jury might find the former among the latter."  RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL HARM § 29 cmt. d (Proposed Final Draft No. 1, 2005).</ref>