[TORTS AND DAMAGES] Causation

CAUSATION
Without proof of causation, the action for damages based on tort fails.

I.

Definition of Proximate Cause

Proximate cause is defined as 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. Other definitions of proximate cause inject the element of foreseeability. In the case of Bataclan v. Medina, the Supreme Court cited this more comprehensive definition of proximate cause: . . . '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.' And more comprehensively, 'the proximate legal cause is that acting first and producing the injury, either immediately or by setting 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 immediately effecting 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 an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.

[TORTS AND DAMAGES] Causation CASE: Bataclan v. Medina [G.R. No. L-10126, October 22, 1957] Facts: At about 2:00am of September 13, 1952, the bus, operated by its owner defendant Mariano Medina and driven by its regular chauffeur, Conrado Saylon, left the town of Amadeo, Cavite. While on its way to Pasay City, one of the front tires burst and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and turned turtle. Some of the passengers managed to leave the bus but the three passengers seated beside the driver, named Bataclan, Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of the overturned bus. No evidence to show that the freed passengers, including the driver and the conductor, made any attempt to pull out or extricate and rescue the four passengers trapped inside the vehicle. After half an hour, came about ten men, one of them carrying a lighted torch, approach the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming the bus, including the four passengers trapped inside it. That same day, the charred bodies of the four passengers inside the bus were removed and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in behalf of her five minor children, brought the present suit to recover from Mariano Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of P87,150. After trial, the CFI Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale and which was lost in the fire. Both plaintiffs and defendants appealed the case to CA which endorsed the case to SC. Issue: W/N the proximate cause of the death of Bataclan was the overturning of the bus or the fire that burned the bus, including the 4 passengers left inside. Held: The Court held that the proximate cause was the overturning of the bus because when the vehicle turned not only on its side but completely on its

[TORTS AND DAMAGES] Causation back, the leaking of the gasoline from the tank was not unnatural or unexpected. The coming of the men with a lighted torch was in response to the call for help, made not only by the passengers, but most probably, by the driver and the conductor themselves, and that because it was dark (about 2:30 in the morning), the rescuers had to carry a light with them, and coming as they did from a rural area where lanterns and flashlights were not available. In other words, the coming of the men with a torch was to be expected and was a natural sequence of the overturning of the bus, the trapping of some of its passengers and the call for outside help. Moreover, the burning of the bus can also in part be attributed to the negligence of the carrier, through its driver and its conductor. According to the witness, the driver and the conductor were on the road walking back and forth. They, or at least, the driver should and must have known that in the position in which the overturned bus was, gasoline could and must have leaked from the gasoline tank and soaked the area in and around the bus. The leaked gasoline can be smelt and directed even from a distance, and yet neither the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not to bring the lighted torch too near the bus. In addition, the case involves a breach of contract of transportation because the Medina Transportation failed to carry Bataclan safely to his destination, Pasay City. There was likewise negligence on the part of the defendant, through his agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was speeding and that the driver failed to change the tires into new ones as instructed by Mariano Medina. The driver had not been diligent and had not taken the necessary precautions to insure the safety of his passengers. Had he changed the tires, especially those in front, with new ones, as he had been instructed to do, probably, despite his speeding, the blow out would not have occurred. Ratio: Proximate cause 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.

[TORTS AND DAMAGES] Causation Comprehensively, 'the proximate legal cause is that acting first and producing the injury, either immediately or by setting 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 immediately effecting 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 an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. Another definition which includes the element of foreseeability is found in Pilipinas Bank v. Court of Appeals: CASE: PILIPINAS BANK, VS.THE HONORABLE COURT OF APPEALS, AND LILIA R. ECHAUS [G.R. No. 97873, August 12, 1993] FACTS: Florencio Reyes issued two post-dated checks. To cover the face value of the checks, he requested PCIB to effect a withdrawal from his savings account there and have it deposited with his current account with Pilipinas Bank. Santos, who made the deposit, wrote the wrong account number on the deposit slip, but wrote the name of Florencio Reyes as the depositors name. The Current Account Bookkeeper of Pilipinas Bank, seeing that the account number coincided with the name Florencio, deposited the amount in the account of Florencio Amador. ISSUE: What was the proximate cause of the injury to Reyes? HELD: The proximate cause of the injury is the negligence of Pilipinas Banks employee in erroneously positing the cash deposit of Reyes in the name of another depositor who had a similar first name. The employee should have continuously gone beyond mere assumption. Proximate cause is 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 care that the injury complained of or some similar injury, would result therefrom as a natural and probable cause.

[TORTS AND DAMAGES] Causation However, it is believed that definitions which include foreseeability are misleading and are 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.

II.

Distinguished from Other Terms

Distinguished from Remote Cause Remote cause- that cause which some independent force merely took advantage of to accomplish something not that natural effect thereof. A remote cause cannot be considered the legal cause of damage. Not all causes that occur before the damages can be considered proximate. CASE: Gabeto v Araneta G.R. No. L-15674 October 17, 1921 FACTS: Gayetano (husband of plaintiff) and Ilano took a carromata to go to a cockpit. When the carromata was about to move, Araneta held the reins of the horse, saying he hailed the carromata first. Driver Pagnaya pulled the reins to take it away from Aranetas control, as a result of which, the bit came off the horses mouth. Pagnaya fixed the bridle on the curb. The horse, free form the control of the bit, moved away, causing the carromata to hit a telephone booth and caused it to crash. This frightened the horse and caused it to run up the street with Gayetano still inside the carromata. Gayetano jumped or fell from the rig, causing injuries from which he soon died. ISSUE: WON Araneta is liable for Gayetanos death. ---NO. HELD: Aranetas act of stopping the rig was too remote from the accident to be considered the legal or proximate cause thereof. After Pagnaya alighted, the horse was conducted to the curb and an appreciable interval of time elapsed before the horse started to career up to the street. Moreover, by getting out and taking his post at the head of the horse, the driver was the person primarily responsible for the control of the animal, and Araneta cannot be charged with liability for the accident resulting from the action of the horse thereafter.

[TORTS AND DAMAGES] Causation

Distinguished from Nearest Cause Proximate cause is not necessarily the nearest cause. It is not necessarily the last link in the chain of events but that which is the procuring efficient and predominant cause. CASE:Rodrigueza v Manila Railroad G.R. No. L-15688 November 19, 1921 FACTS: The house of Rodrigueza and 3 others were burned when a passing train emitted a great quantity of sparks from its smokestack. Rodriguezas house was partly within the property of the Manila Railroad. ISSUE: WON Manila Railroads negligence was the proximate cause of the fire HELD: Yes. The fact that Rodriguezas house was partly on the defendants property is an antecedent condition that may have made the fire possible but cannot be imputed as contributory negligence because: (1) that condition was not created by himself; (2) his house remained on this ground by the tolerance, and thus consent of the train company; (3) even supposing the house to be improperly there, this fact would not justify the defendant in negligently destroying it. Rodriguezas house was built on the same spot before the defendant laid its tracks over the land.

III.

Effect 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 omissions 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, tortious 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.

[TORTS AND DAMAGES] Causation CASE: Far Eastern Shipping Company v CA G.R. No. 130068 October 1, 1998 FACTS: A ship owned by FESC rammed into the apron of the pier. Kavankov was the master of the vessel. Gavino was the compulsory pilot. ISSUE: Who was negligent --- Gavino or Kvankov? ---BOTH. HELD: Both Gavino (compulsory pilot) and Kavankov (master of the vessel) were concurrently negligent. Gavino was negligent for failing to react on time; Kavankov was negligent in leaving the entire docking procedure up to Gavino instead of being vigilant. Negligence, in order to render a person liable need not be the sole cause of an injury. 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. Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury. There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable for the whole damage. Reason: It is impossible to determine in what proportion each contributed to the injury and either of them is responsible for the whole injury. In cases where there is concurrent cause or negligence, the joint tortfeasors are solidarily liable. Article 2194 of the New Civil Code states that: Art. 2194. The responsibility of two or more persons who are liable for quasidelict is solidary. (n)

[TORTS AND DAMAGES] Causation IV. Plaintiffs Negligence as Concurrent Proximate Cause

The plaintiff cannot recover if the negligence of both the plaintiff and the defendant can be considered the concurrent proximate cause of the injury. This ruling on concurrent proximate cause is consistent with Article 2179 of the New Civil Code that provides that the plaintiff cannot recover if his negligent act or omission is the proximate cause of his damage or injury. CASE: Sabido v Custodio G.R. No. L-21512 August 31, 1966 FACTS: Custodio, a passenger of a bus, was hanging onto its left side. While the bus was negotiating a sharp curve of a bumpy and downward slope, a speeding truck going in the opposite direction side-swiped Custodio, who died as a result thereof. ISSUE: Who was negligent and what is the extent of liability? ---BOTH solidarily liable. HELD: The carrier and its driver were negligent for allowing Custodio to hang by the side of the bus. The truck driver was also negligent for speeding through the middle portion of the road. Although the negligence of the carrier and its driver is independent, in its execution, of the negligence of the truck driver and its owner, both acts of negligence are the proximate cause of Custodios death. Where the concurrent or successive negligent acts or omission of two or more persons, although acting independently of each other, are, in combination, the direct and proximate cause of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage might have resulted from the acts of the other tortfeasor.

[TORTS AND DAMAGES] Causation V. Proof of Causation

There must be proof of the causal connection before the alleged tortfeasor may be made liable. Possibility is not an actual fact, probability is not certainty, and certainty requires proof. In United States v. Ortega, it was established that the alleged tortfeasor prescribed a medicine on the victim who was a child and who seemed to improve after the medicine was administered. The death of the child was also established. However, the Court, in acquitting the accused, pointed out that no attempt was made to show that the medicine was the cause of the childs death. The testimonies of the witnesses did not have any knowledge about the death of the child; the testimonies were hypothetical without having the body of the child before them and without a post mortem having been made. The certificate of death did not reflect anything abnormal about the death of the child.

VI.

Tests of Proximate Cause

Quasi-delictual actions involve three requirements: 1. negligence 2. damage 3. the causal connection between the damage and the negligent act or omission In other words, proof of negligence and damage is not enough. It is still required that the plaintiff presents proof that the proximate cause of the damage to the plaintiff is negligent act or omission of the defendant. It was observed that proximate cause is determined by the facts of each case upon mixed considerations of logic, common sense, policy and precedent. CAUSE-IN-FACT AND POLICY TESTS In determining the proximate cause of the injury, it is first necessary to determine if the defendants negligence was the cause-in-fact of the damage to the plaintiff. If it was not a cause-in-fact, the inquiry stops; but if it is a cause-infact, 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. Considerations 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

[TORTS AND DAMAGES] Causation bounds of correlative rights and duties as well as the point beyond which the courts will decline causal connection. 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. The mere fact that the negligence of the defendant is a factor in bringing about the injury does not necessarily mean that he shall be liable. In Palsgraf v Long Island R.R., the dissenting opinion explained the concept of proximate cause. CASE: Palsgraf v. Long Island R.R. Co., Ct. of App. of N.Y., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928). Facts: Mrs. Palsgraf (P) was standing on a Long Island Railroad (D) train platform when two men ran to catch a train. The second man was carrying a small package containing fireworks. He was helped aboard the train by one guard on the platform and another on the train. The man dropped the package which exploded when it hit the tracks. The shock of the explosion caused scales at the other end of the platform many feet away to fall, striking and injuring Palsgraf. Palsgraf brought a personal injury lawsuit against Long Island Railroad and the railroad appealed the courts judgment in favor of Palsgraf. The judgment was affirmed on appeal and Long Island Railroad appealed. Issues: How is the duty of due care that is owed determined? To whom does a party owe the duty of due care? Holding and Rule (Cardozo Zone of Danger rule): A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances. A defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger. The court held 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.

[TORTS AND DAMAGES] Causation 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. Disposition Reversed judgment for Long Island Railroad. Dissent (Andrews) Everyone owes the world at large the duty of refraining from acts that may unreasonably threaten the safety of others. In determining proximate cause the court must ask whether there was a natural and continuous sequence between the cause and effect and not whether the act would reasonably be expected to injure another. The court must consider that the greater the distance between the cause and the effect in time and space, the greater the likelihood that other causes intervene to affect the result. In this case there was no remoteness in time and little in space. Injury in some form was probable. Notes The majority adopted the principle that negligent conduct resulting in injury will lead to liability only if the actor could have reasonably foreseen that the conduct would cause the injury. In a 4-3 opinion by Cardozo, the court held that the Long Island Railroad attendants could not have foreseen the possibility of injury to Palsgraf and therefore did not breach any duty to her. Andrews asserted that the duty to exercise care is owed to all, and thus a negligent act will subject the actor to liability to all persons proximately harmed by it, whether or not the harm is foreseeable. Both opinions have been widely cited to support the two views expressed in them. The reasoning in this case was that Long Island Railroad did not owe a duty of care to Palsgraf insofar as the package was concerned. Cardozo did not reach the issue of proximate cause for which the case is often cited. There is no general principle that a railroad owes no duty to persons on station platforms not in immediate proximity to the tracks, as would have been the case if Palsgraf had been injured by objects falling from a passing train.

[TORTS AND DAMAGES] Causation CAUSE-IN-FACT TESTS Philosophical Foundations According to David Hume, if causation is but another mind construct, its use guarantees no revelation of reality. He 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, according to Hume, we consider that there is such causality because we have hitherto observed that the objects of those two types are regularly conjoined, we expect them to go together on this occasion too. Humes account of causality was refined by John Stuart Mill. He explained that it may be that whenever Cause is present, Effect is seen to follow, in which case Cause is said to be efficient for Effect, alternatively, it may be that whenever Effect is present, Cause is found to have occurred first, in which case, Cause is necessary for Effect. Mill also explained that where Cause is in fact sufficient for Effect, it most invariably comprises a complex of conditions or a causal set, whose combined presence is then followed by Effect. In A System of Logic, Mill observed that the invariable antecedent is termed the cause and the invariable consequent, the effect. Legal theorists Hart and Honore elaborated on the theories of David Hume and John Stuart Mill. They 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. Hart and Honore likewise refer to the cone of causation. They observed that if we look into the past of any given event, there is an infinite number of events, each of which is a necessary condition of the given event and so, as much as any other, is its cause. This is the cone of causation, so called, because since any event has a number of simultaneous conditions, the series fans out as we go back in time.

[TORTS AND DAMAGES] Causation Philosopher J.L. Mackie further explained that causal statements are commonly made in some context, against a background that includes the assumption of some causal field.

VII.

Different Cause-In-Fact Tests

The initial step in determining proximate cause is to determine if the negligent act or omission of the defendant is the cause-in-fact of plaintiffs damage or injury. Under the rubric of cause-in-fact, courts address generally the empirical question of causal connection. It is necessary that there is proof that the defendants conduct is a factor in causing a plaintiffs damage. What needs to be determined is whether the defendants act or omission is a causally relevant factor. In making such determination, two main tests are being applied: 1. the But-For test or the Sine Qua Non test; and 2. the Substantial Factor test SINE QUA NON TEST The basic conception of the cause is the alternative definition of David Hume in Inquiry on Human Understanding. He said: Or in other words, where if the first object had not been, the second never had existed. This concept is the foundation of what is known as the but-for test. Simply stated, defendants conduct is the cause in fact of the injury under the but-for test if the damage would not have resulted had there been no negligence on the part of the defendant. Conversely, defendants negligent conduct is not the cause in fact of the plaintiffs damage if the accident could not have been avoided in the absence thereof. 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 an 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 inquiry because the accident could not have been avoided in the absence thereof.

[TORTS AND DAMAGES] Causation

In some circumstances, and particularly where there are multiple independent causes, the but for test is unworkable in other words, it is practically impossible for the plaintiff to prove by the usual means that the same injury would not have occurred had the defendants wrongdoing not taken place. Another way of putting it is that it may be practically impossible for the plaintiff to show that he or she would have been in a better position had there been no wrongdoing. One example of practical impossibility of proof is the question whether a persons marriage would have failed regardless of the defendants sexual abuse of that person. The question then arises: How is the plaintiff to prove the necessary element of causation when the circumstances are such that the but for test, satisfaction of which is a necessary ingredient of causation, is unworkable? In the landmark Athey decision, that question was answered: The but for test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendants negligence materially contributed to the occurrence of the injury. The first concern with that statement is that it implies that the but for test is to be abandoned in cases where it is unworkable and in its place is to be substituted the materially contributing cause test. SUBSTANTIAL FACTOR TEST The substantial factor test makes the negligent conduct the cause in fact of the damage if it was a substantial factor in producing the injuries. In order to be a substantial factor in producing the harm, the causes set in motion by defendant must continue until the moment of the damage or at least down the setting in motion of the final active injurious force which immediately produced or preceded the damage. In other words, if the accident would not have occurred had there been no negligence of the part of the defendant, the defendants conduct is a substantial factor in bringing about the damage or injury.

[TORTS AND DAMAGES] Causation CASE:Philippine Rabbit Bus Lines v IAC G.R. Nos. 66102-04 August 30, 1990 FACTS: A jeep was carrying passengers to Pangasinan when its right rear wheel became detached, causing it to be unbalanced. The driver stepped on the brake, which made the jeep turn around, encroaching on the opposite lane. A Philippine Rabbit Bus from the opposite lane bumped the rear portion of the jeep. Three passengers of the jeep died as a result. The Court of Appeals ruled that the bus driver was negligent. It applied the substantial factor test: It is a rule under this test that if the actors conduct is a substantial factor in bringing about the harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable. ISSUE: Who is liable?-Jeep. HELD: The Supreme Court was not convinced by the application of the substantial factor test. Even though the bus was driving at 80-90 kph, it was still within the speed limit allowed in highways. The bus driver had little time to react and had no options available: it could not swerve to the right (western shoulder was narrow and had tall grasses; already near the canal) or to the left (it would have it the jeep head-on). In this case, substantial factor test was not applied by the Supreme Court; only the Court of Appeals did. NECESSARY ELEMENT OF SUFFICIENT SET (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. The test is based on the concept of causation by Hume and Mill, and systematically elaborated for legal purposes by Professors Hart and Honore in Causation in Law and Professor Wright in Causation in Tort Law.

[TORTS AND DAMAGES] Causation The candidate condition may still be termed as a cause where it is shown to be a necessary element in just one of several co-present causal set each independently sufficient for the effect. There are two ways by which co-presence may manifest itself: a. Duplicative causation When two or more sets operate simultaneously to produce the effect; the effect is over-determined. b. Pre-emptive causation When, though coming about first in time, one causal set trumps another potential set lurking in the background; the causal potency of the latter is frustrated. Two assassins independently plot to kill a desert traveller. The first poisons the water in the traveller's canteen. The second, not knowing about the poison, empties the canteen. When the traveller opens her canteen to have a drink, she finds it empty and ultimately dies of thirst. A mechanic fails to make the required repairs to a set of car brakes. The driver of the car approaches an intersection. He does not attempt to use the brake pedal and strikes the car ahead of him. In a case of preemptive causation, a factor that could have been sufficient to produce a loss is preempted by a second that actually brings about the loss. The attempt of the first assassin is preempted by the actions of the second. The traveller dies of thirst, not of poison. Similarly, the negligence of the garage in repairing the brakes is said to have been preempted by the negligence of the driver. Notably, in both examples, the preempted set of factors was sufficient to produce the loss. The NESS test, however, is more specific. It requires that the set of conditions sufficient to produce the loss actually be operating at the time of the loss. If a man dies in a hospital the day before a nuclear attack kills everyone in his town, it would not be suffice to say that the nuclear attack, though sufficient to kill him had he survived, was a cause of his death. It was not actually operating at the time. Where this qualification is added, the NESS test can be used to resolve the examples above.

[TORTS AND DAMAGES] Causation FIRST STAGE ONLY The first stage of causation is primarily a matter of historical mechanics although it necessarily involves the questions about what would have happened in different circumstances. In most cases, the first stage of causation inquiry is comparatively unimportant in practice because it will usually be obvious whether it is satisfied and it will not form the basis of argument or adjudication. It eliminates the irrelevant but its function is certainly not to provide a conclusive determination of the defendants liability. VIII. Policy Tests Foreseeability test Negligence involves a foreseeable risk, a threatened danger or injury and conduct unreasonable in proportion to danger. Foreseeability becomes a test in an effort to limit liability to a consequence which has a reasonably close connection with the defendants conduct and the harm which it originally threatened. When the result complained of is not reasonably foreseeable in the exercise of ordinary care under all the facts as they existed, an essential element of actionable negligence is lacking. The foreseeability test is applied in conjunction with the natural and probable consequences test. Natural and probable consequence test This test is designed to limit the liability of a negligent actor by holding him responsible only for injuries which are the probable consequences of his conduct as distinguished from consequences that are merely possible. For this purpose, the term probable is used in the sense of foreseeable. An injury is deemed the natural and probable result of a negligent act if after the event, and viewing the event in retrospect to the act, the injury appears to be the reasonable rather than the extraordinary consequence of the wrong, or such as,

[TORTS AND DAMAGES] Causation according to common experience and the usual course of events, might reasonably have been anticipated. The consequence of the negligent act must be within the range of probability as viewed by the ordinary man. The natural and probable consequences have been said to be those which human foresight can anticipate because they happen so frequently they may be expected to recur. Ordinary and natural or direct consequences This test states that, as a matter of legal policy, if negligence is a cause in fact of the injury under the criteria previously discussed, the liability of the wrongdoer extends to all the injurious consequences. This is based on the principle that in tort, the wrongdoer is liable for all the consequences which 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 it in fact resulted as a direct consequence of the defendants act. Hindsight test The hindsight test eliminates foreseeability as an element. 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 been ascertained by reasonable diligence, or not, would have thought at the time of the negligent act as reasonably possible to follow, if they had been suggested to his mind. Orbit of the risk test This was intended to be a test of duty and not a test of proximate cause. If the foreseeable risk to plaintiff created a duty which the defendant breached, liability is imposed for any resulting injury within the orbit or scope of such injury, it is not the unusual nature of the 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.

[TORTS AND DAMAGES] Causation

IX.

Tests in the Philippines

The New Civil Code has a chapter on Damages which specifies the kind of damage for which the defendant may be held liable and the extent of damage to be awarded to the plaintiff. Applicable Cause-In-Fact Test in the Philippines But-for Test/ Sine Qua Non Test o Concurrent causes o Sufficient Combined causes Substantial Factor Test Ness Test

Sine Qua Non Test Concurrent causes Where two separate acts of negligence combine to cause an injury to a third party, each actor is liable. For example, a construction worker negligently leaves the cover off a manhole, and a careless driver negligently clips a pedestrian, forcing the pedestrian to fall into the open manhole. Both the construction worker and the careless driver are equally liable for the injury to the pedestrian. This example obeys the but-for test. The injury could have been avoided by the elimination of either act of negligence, thus each is a but-for cause of the injury. Sufficient combined causes Where an injury results from two separate acts of negligence, either of which would have been sufficient to cause the injury, both actors are liable. For example, two campers in different parts of the woods negligently leave their campfires unattended. A forest fire results, but the same amount of property damage would have resulted from either fire. Both campers are equally liable for all damage. Applicable Policy Tests in the Philippines 1) Policy Test under the 1889 Civil Code 2) Rule under the New Civil Code Article. 2202. In crimes and quasi-delicts, the defendant shall be liable for all the damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably been foreseen by the defendant.

[TORTS AND DAMAGES] Causation The rule in contracts is different from the rule in quasi-delict if the person sought to be held liable ex contractu acted in good faith. Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those that are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted. In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the nonperformance of the obligation. (1107a) Natural and Probable under Article 2202 involves causality and adequacy. Cause and Condition. It is no longer practicable to distinguish between cause and condition. The defendant may be liable if the conditions created resulted in harm to either person or property. CASE: Phoenix Construction v. Intermediate Appellate Court, Manila Electric Co. v. Remoquillo, et al FACTS: A dump truck, owned by Phoenix, was parked askew on the right hand side of the street in such a manner as to stick out onto General Lacuna St., partly blocking the way of oncoming traffic. There were no early warning devices placed near the truck. At 1:30AM, Dionisio was on his way home when his car headlights allegedly suddenly failed. He switched his headlights on bright and saw the truck looming 2 meters away from his car. His car smashed into the dump truck. ISSUE: What was the proximate cause of the accident? HELD: The wrongful and negligent parking of the truck, and not the negligence of Dionisio, was the proximate cause of the accident. The truck drivers negligence was far from being a passive and static condition and was rather an indispensable and efficient cause. The collision of Dionisios car with the dump truck was a natural and foreseeable consequence of the truck drivers negligence. The improper parking of the truck created an unreasonable risk of injury for anyone driving down General Lacuna St. and for having so created this risk, the truck driver must be held liable.

[TORTS AND DAMAGES] Causation What the petitioners describe as an intervening cause was no more than a foreseeable consequence of the risk created by the negligent manner in which the truck driver had parked the dump truck. Quoting Posser and Keeton on Foreseeable intervening causes: If the intervening cause is one which in ordinary human experience is reasonable to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, the defendant may be negligent xxx because of failure to guard against it; or the defendant may e negligent only for that reason. Foreseeable intervening forces are within the scope of the original risk, and hence of the defendants negligence. Types of Dangerous Conditions 1. Those that are inherently dangerous 2. Those where a person places a thing which is not dangerous in itself, in a dangerous position; and 3. Those involving products and other things which are dangerous because they are defective. EGG-SKULL or THIN SKULL Rule It increases the liability of a person who may commit a tort against another, from results arising out of those tortuous acts. CASE: Benn v. Thomas Efficient and Intervening Cause (Novus Actus Interviens) An efficient intervening cause is the new and independent act which itself is a proximate cause of an injury and which breaks the causal connection between the original wrong and the injury. When cause not Intervening cause. A cause is not an intervening cause if it is already in operation at the time the negligent act is committed. Rodrigueza v. Manila Electric Railroad Negligence of the Defendant.

The efficient intervening cause may be the negligence of the defendant. The plaintiff may be negligent but the defendants negligence pre-empted the effect of such negligence. Mckee v. Intermediate Appellate Court Foreseeable Intervening causes cannot be considered sufficient intervening causes.

[TORTS AND DAMAGES] Causation Medical Treatment as Intervening Cause. A tortfeasor is liable for the consequence of negligence, mistake, or lack of skill of a physician or surgeon whose treatment aggravated the original injury. Additional harm is either: 1. A part of the original injury 2. The natural and probable consequences of the tortfeasors original negligence; or 3. The normal incidence if medical care necessitated by the tortfeasors original negligence. Unforeseen or Unexpected Act or Cause An unforeseen and unexpected act of a third person may not therefore be considered efficient intervening cause if it is duplicative in nature or if it merely aggravated the injury that resulted because of a prior cause. Case: Vda. De Bataclan, et al v. Mariano Medina X. Contributory Negligence

PLAINTIFFs NEGLIGENCE IS THE CAUSE In this situation defendants act or omission is not causally relevant; it is neither necessary nor sufficient to cause damage or injury. This situation may include when only the plaintiff was negligent while the defendant is not negligent or defendants negligence is not part of the causal set. Another situation included are cases when plaintiffs negligence is pre-emptive in nature. COMPOUND CAUSES In this situation, the plaintiffs negligence occurs simultaneously with that of the defendant. The latters negligence is equally sufficient but not necessary for the effect because the damage would still have resulted due to the negligence of the plaintiff. In this case, no recovery can be had. The plaintiffs negligence is not merely contributory because it is concurring proximate cause. PART OF THE SAME CAUSAL SET In this situation, the plaintiffs negligence, together with the defendants is part of the same causal set. Plaintiffs negligence is not sufficient to cause the injury while defendants negligence is also not equally sufficient. The effect would result only if both are present together with normal background conditions. The effect would not have resulted without the concurrence of all of them.

[TORTS AND DAMAGES] Causation DEFENDANTS NEGLIGENCE IS THE ONLY CAUSE. In this situation the defendants negligence may be sufficient and necess ary to cause the damage and plaintiffs act or omission is neither necessary nor sufficient. Damage to the plaintiff was solely the result of the defendants negligence. However, the plaintiffs negligence may have Increased the resulting damage or injury. In this particular case, the liability of the defendant should be mitigated.

XI.

Doctrine of the Last Clear Chance

Alternative Views on last Clear Chance Prevailing View The Supreme Court ruled that even if the plaintiff was guilty of antecedent neg ligence, the defendant is still liable because he had the last clear chance of avoiding injury. The law is that the person who has the last fair chance to avoid the impending harm and fails to do is chargeable with the consequences, with Without reference to the prior negligence of the other party. Minority View Third View

Cases when the doctrine was applied Picart v. Smith Philippine Bank of Commerce v. Court of Appeals. Glan Peoples lumber and Hardware v. IAC

Cases when the doctrine was held inapplicable It does not apply if the plaintiff was not negligent, that is, only the defendant was negligent. It cannot also apply where the defendant is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered; at least in cases in which any previous negligence of the party charged cannot be said to have contributed to the injury. It cannot be applied if defendants negligence is a concurrent cause and which was still in operation up to the time the injury was inflicted.

[TORTS AND DAMAGES] Causation It does not arise where the plaintiff, a passenger, filed an action against a carrier based on contract. It is not applicable if the actor, though negligent, was not aware of the danger or risk brought about by a prior fraud or negligent act. Cases: Pantranco North Express, Inc. v. MAricar Bascos BAesa, et al. G.R. Nos. 79050-51, Nov. 14, 1989. Ong v. Metropolitan Water District *104 phil 397, 1958 LBC Air Cargo v. CA 241 SCRA 619 ,1995