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Liability for the Consequences of a
BY ARTHUR L. GOODHART, M.A., LL.B.,
FELLOW AND LECTURER Of Corpus CHRISTI COLLEGE, CAMBRIDGE.
BREVITY may be the soul of wit, but in law it is frequently the cause of error and misunderstanding. At first a legal phrase expresses in full the whole conception which it is intended to convey. As the phrase becomes more or less hackneyed, only the first part of it is used and the last part is implied. In the further course of time the implied part is forgotten, and the whole conception is supposed to be contained in the truncated form which has survived. A similar process, with equally unfortunate results, takes place when two phrases expressing different ideas are combined into a single one so that distinctions which were clear in the beginning become blurred and in time disappear.
It is the purpose of this paper to show that, owing to these processes, the terms "act," "negligence,' and duty of care," are frequently used in a lax and unscientific sense. Many of the questions which have arisen concerning liability for the unforeseen consequences of an act are due to a faulty interpretation of these fundamental terms.
Austin defines an act as follows1:
The bodily movements which immediately follow our desires of them, are acts (properly so-called).
But every act is followed by consequences; and is also attended by concomitants, which are styled its circumstances.
1 Austin, Jurisprudence (5th ed., 1911), p. 421.
He defines a forbearance and an omission as follows1:
A forbearance is the not doing a given act with an intention of not doing it.
An omission is the not doing a given act, without adverting (at the time) to the act which is not done.
It is convenient to include these "negative acts under the generic term "act," and in this paper "act" will be used in the broader sense.2 This extension does not, however, affect the validity of Austin's definition of a positive act.
Mr. Justice Holmes, in The Common Law, defines an act as follows3:
An act is always a voluntary muscular contraction, and nothing else. The chain of physical sequences which it sets in motion or directs to the plaintiff's harm is no part of it, and very generally a long train of such sequences intervenes.
He repeats this view in substance on two other pages of his book, thus emphasising the fundamental importance which he places upon an accurate definition of this term. According to Austin and Holmes, there is therefore a clear line of demarcation between an act (either positive or negative) and its circumstances and consequences. It is unfortunate that this definite cleavage has not always been accepted. Sir Frederick Pollock, in defining an act, recognises the distinction5:
For simplicity's sake we commonly reckon the immediate and usual consequences of an act, when to all appearance they are intended and follow as intended, as part of the act itself, and we speak of intention only with reference to the farther consequences. In the act of shooting, for example, the man's own act stops, if we are to speak with strict precision, at pulling the trigger, but the discharge of the gun in the direction given to the barrel by the man's aim is counted as part of the act.
1 Op. cit., p. 425.
2 See Salmond, Jurisprudence (7th ed.), p. 381. Holmes, The Common Law, p. 91.
• Op. cit., pp. 54, 131.
• Pollock, Jurisprudence (2nd ed.), p. 153. See Holland, Jurisprudence (13th ed.), p. 108, for a similar definition.
It will be noted that in this quotation only those consequences which are intended are included as part of the act. This process of metonymy is not misleading when it is limited to intentional consequences, but it conduces to error when it is extended to include unintentional consequences.
Sir John Salmond defines an act as follows1:
When it is said, however, that an act is one of the essential conditions of liability, we use the term in the widest sense of which it is capable. We mean by it any event which is subject to the control of the human will.
He refuses to accept the limitation which Sir Frederick Pollock makes by the inclusion of the word "intentional," because "intention is not a necessary condition of legal liability, and therefore cannot be an essential element in those acts which produce such liability." He justifies his definition on the ground that it accords with "the common usage of speech." He apparently departs from this ground, however, when he says3:
It may be suggested that although an act must be taken to include some of its consequences, it does not include all of them, but only those which are direct or immediate. Any such distinction, however, between direct and indirect, proximate and remote consequences, is nothing more than an indeterminate difference of degree, and cannot be made the basis of any logical definition. The distinction between an act and its consequences, between doing a thing and causing a thing, is merely a verbal one; it is a matter of convenience of speech, and not the product of any scientific analysis of the conceptions involved. There is no logical distinction between the act of killing a man and the act of doing something which results (however remotely) in his death.
There are two main objections to Salmond's definition. First, in ordinary language we do distinguish between an act and its consequences. Only a few of the immediate consequences are included 1 Salmond, Jurisprudence (7th ed.), p. 381.
2 Op. cit., p. 382.
3 Op. cit., p. 384.
in ordinary speech. "I have done an event" is a phrase which we should have to accept if we adopted Salmond's definition. Secondly, the distinction between an act and its consequences is a fundamental one in the law of Torts. If we include both in one term we blur the line of demarcation between them. He says "the distinction between doing a thing and causing a thing is a merely verbal one"; but the distinction between doing one thing and causing another thing is of the utmost importance.1 In many cases the question is "Was the plaintiff's injury the consequence of the defendant's admitted act?"
Negligence has been defined by Sir John Salmond as follows2:
Negligence is the breach of a legal duty to take care. It is carelessness in a matter in which carefulness is made obligatory by law. Negligence and wrongful intent are the two alternative forms of mens rea, one or other of which is commonly required by law as a condition of liability. Each consists in a certain mental attitude of the defendant towards the consequences of his act.
It is not necessary for the purpose of this paper to discuss the question whether negligence is subjective or objective. The essential point is that foresight of the consequences is required under either theory. So Sir Frederick Pollock, who favours the objective theory, says3:
A man is not deemed to be negligent merely because he omitted to provide against a risk which could not reasonably be foreseen.
To prove that a man has been negligent in a particular case it is necessary therefore to show that (a) he knew or ought to have known the circumstances1,
1 Thomas v. Quartermaine (1887) 18 Q.B. D. 685; 56 L.J. Q.B. 340. 2 Salmond, Torts (6th ed.), p. 21.
3 Pollock, Liability for Consequences, L.Q.R., Vol. xxxviii., p. 165. 4 Holmes, op. cit., p. 54.