Private Law Theory

ABSTRACT
The theory and doctrine of proximate cause has been too easily dismissed. Two primary errors underlie this dismissal: a misunderstanding of ‘causal proximity’, and a mistaken inference from the correct observation that effects have multiple causes, to the claim that there is no hierarchy between proximate and more remote causes. This article defends the classic conception of proximate causation as causally grounded by reconstructing the doctrine and articulating an underlying concept of proximate causation in which proximity is relative (though still objective).

Proximate causation is a relation between two causes and an effect, when one cause mediates the effects of another. This idea informs the doctrines of proximate cause, which, following Bacon’s Maxim, trace back from the injury to its causes, in sequence. along the paths of causation, until responsibility is absorbed, at which point the process terminates. Causal chains ‘break’: not because the cause and effect are too remote, but because a set of causes that are proximate, relative to these remote causes, are sufficient to absorb responsibility. With responsibility absorbed, there is nothing further to trace back. This is missed if tracing is from cause to injury, rather than in reverse, from injury to cause.

As a matter of responsibility, the responsibility of remote actors – those that act through the agency of others, or those that fail to prevent the wrongdoing of others – is always subordinate to that of the causally proximate actor. This does not mean that the proximate actor always bears greater responsibility than the remote one, but when responsibility is transmitted remotely, it must be in virtue of a justifying or excusing condition for the proximate actor’s act. The order of justification follows the order of causation.

Properly understood, proximate cause is essentially a defense that asserts that the defendant is not the most proximate cause to the harm, and that someone (or something) else is. The implications for both liability and contribution are discussed.

Abrams, Yuval, Relative Proximity and Proximate Cause (August 11, 2024), Baylor Law Review, volume 77 (1), pp 131-204.