Editing Negligence (section)

==== Legal causation (proximate cause) ====
[[File:Train wreck at Montparnasse 1895.jpg|thumb|150px|Negligence can lead to collisions like the [[Montparnasse derailment]] at [[Gare Montparnasse]] in 1895.]]

Sometimes factual causation is distinguished from "legal causation" to avert the danger of defendants being exposed to, in the words of [[Benjamin Cardozo|Cardozo, J.]], "liability in an indeterminate amount for an indeterminate time to an indeterminate class".<ref>''Ultramares Corp. v. Touche''(1931) 255 N.Y. 170, 174 N.E. 441</ref> It is said a new question arises of how remote a consequence a person's harm is from another's negligence. We say that one's negligence is "too remote" (in England) or not a "[[proximate cause]]" (in the US) of another's harm if one would "never reasonably foresee it happening". A "proximate cause" in US terminology (to do with the chain of events between the action and the injury) should not be confused with the "proximity test" under the English duty of care (to do with closeness of relationship). The idea of legal causation is that if no one can foresee an incident, and therefore can not take care to avoid it, nobody could be responsible. For instance, in ''[[Palsgraf v. Long Island Rail Road Co.]],''<ref>''Palsgraf v. Long Island Rail Road Co.'' (1928) 162 N.E. 99</ref> the judge decided that the defendant, a [[railway]], was not liable for an injury suffered by a distant bystander. The plaintiff, Palsgraf, was hit by coin-operated scale which toppled because of fireworks explosion that fell on her as she waited on a train platform. The scales fell because of a far-away commotion (a train conductor had pushed a passenger holding a box containing an explosive) but it was not clear that what type of commotion caused the scale to fall, either it was the explosion's effect or the confused movement of the terrified people. A train [[Conductor (transportation)|conductor]] had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor mishandled the passenger, or his package, causing it to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform, which became the cause of commotion on the platform, and as a consequence, the scales fell.{{efn|The plaintiff's physical injuries were minor and more likely caused by a stampede of travelers on the platform rather than the concussion of the exploding fireworks.  These details have not, however, stopped the case from becoming the source of extensive debate in [[United States|American]] tort law.}} Because Palsgraf was hurt by the falling scales, she sued the [[train]] company who employed the conductor for negligence.{{efn|She could have sued the man or the conductor himself, but they did not have as much money as the company. Often, in litigation, where two defendants are equally liable but one is more able to satisfy a judgment, he will be the preferred defendant and is referred to as the "deep pocket."}}

The defendant train company argued it should not be liable as a matter of law, because despite the fact that they employed the employee, who was negligent, his negligence was too remote from the plaintiff's injury. On appeal, the majority of the court agreed, with four judges adopting the reasons, written by Judge Cardozo, that the defendant owed no duty of care to the plaintiff, because a duty was owed only to foreseeable plaintiffs.<ref>{{Cite web |title=Palsgraf v Long_Is_RR |url=https://www.nycourts.gov/reporter/archives/palsgraf_lirr.htm |access-date=2024-01-19 |website=www.nycourts.gov}}</ref> Three judges dissented, arguing, as written by Judge Andrews, that the defendant owed a duty to the plaintiff, regardless of foreseeability, because all men owe one another a duty not to act negligently.

Such disparity of views on the element of remoteness continues to trouble the judiciary. Courts that follow Cardozo's view have greater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no duty of care to the plaintiff, the plaintiff will lose his case for negligence before having a chance to present to the jury. Cardozo's view is the majority view. However, some courts follow the position put forth by Judge Andrews. In jurisdictions following the minority rule, defendants must phrase their remoteness arguments in terms of proximate cause if they wish the court to take the case away from the jury.

Remoteness takes another form, seen in ''[[The Wagon Mound (No. 2)]]''.<ref name= "Wagon Mound #2 PC">{{cite bailii |litigants=[[Overseas Tankship (UK) Ltd v The Miller Steamship Co]] (Wagon Mound No. 2) |year=1966 |court=UKPC |num=10 |format=1 |parallelcite=[1967] [[Appeal Cases Law Reports|AC]] 617; [1967] 2 [[All England Law Reports|All ER]] 709 |courtname=auto |juris=NSW |date=25 May 1966 }}.</ref> The Wagon Mound was a ship in [[Sydney]] harbour. The ship leaked oil creating a slick in part of the harbour.  The wharf owner asked the ship owner about the danger and was told he could continue his work because the slick would not burn. The wharf owner allowed work to continue on the wharf, which sent sparks onto a rag in the water which ignited and created a fire which burnt down the wharf. The Privy Council determined that the wharf owner "intervened" in the causal chain, creating a responsibility for the fire which canceled out the liability of the ship owner.

In Australia the concept of remoteness, or proximity, was tested with the case of ''Jaensch v Coffey''.<ref name="Jaensch v Coffey" /> The wife of a policeman, Vicki Coffey, suffered a nervous shock injury from the aftermath of a motor vehicle collision, although she was not actually at the scene at the time of the collision. The court upheld that, in addition to it being reasonably foreseeable that his wife might suffer such an injury, it required that there be sufficient proximity between the plaintiff and the defendant who caused the collision. Here there was sufficient causal proximity. See also ''Kavanagh v Akhtar'',<ref name="Kavanagh v Akhtar">{{cite AustLII|NSWSC|779|1998|litigants=Kavanagh v Akhtar |parallelcite= |courtname=auto |date=}}.</ref> ''Imbree v McNeilly'',<ref name="Imbree v McNeilly">{{cite AustLII|HCA|40|2008|litigants=Imbree v McNeilly |parallelcite= |courtname=auto |date=}}.</ref> and ''Tame v NSW''.<ref name="Tame HCA"/>