Re-looking at causation in Common Law Tort cases

In this post I will primarily evaluate and critique the causation principle (or lack thereof) used by courts in certain common law cases of negligence. Causation as defined in Winfield, reads as a causal link based on a 'balance of probabilities' between the loss suffered and the defendant’s wrong. A test that is often used when trying to establish causation is called the ‘but-for’ test. However, the but-for test fails when there are multiple causations because not a single event or act causes the injury or the damage. Then the way causation is established is to establish that the defendant’s act(s) (among a host of other acts, one of whom might be the claimants’ own negligence) materially contributed to the claimant’s injury. The standard rule is that the material contribution should be towards the injury and not towards merely increasing the risk of the injury. However there are a few exceptions to this rule that I will critique later in this post. I mainly argue that the courts should not take to vague mentions of policy considerations when trying to escape the common law tests laid for establishing causation and reasonable foresight, for this not only sets a bad legal precedent, but also prejudices a certain class of litigators before the court and thus hampers in dispensation of justice.

Causation conundrums

The law of causation dictates that for a defendant to be held liable for the plaintiff’s injury, it has to be established that the injury was caused by the defendant’s negligent act. In Baker V Willoughby the facts were such that a pedestrian had been knocked down by defendant driving a car negligently which caused serious injury to him. Due to such injury, his earnings had reduced. Before the trial for the case, the plaintiff became the victim of an armed robbery in which he suffered gunshot wounds to the same leg, and as a result of which his leg had to be amputated. The plaintiff's case was that the defendant should be held liable for the losses suffered from the shooting since it was him who had caused the initial injury which lead to the subsequent infirmity which in turn increased the chances of the leg to be amputated when being shot at.

The court held Willoughby (the defendant) to be liable for all of the damages since if it wasn’t for his negligence, Baker wouldn’t have lost his leg. This logic fails on two counts, firstly on the account of the intervening act of the armed robbers that broke the chain of causation, and secondly by applying the the but-for test. The second injury i.e. the gunshot clearly breaks the chain of causation for it was a Novus actus interveniens, done willfully and voluntarily by the armed robbers and thus made the robbers liable for all of the damages from that point onwards. Secondly, by applying the but-for test on the gunshot – but for the gunshot, Baker would still have a leg, although injured; we can establish that the amputation of leg and all the loss of amenities that flowed out of the injury made the robbers liable for the damages, and not the respondent. As pointed out by Lord Reid in his judgement for the case – a person is not compensated for the injury but for the loss of amenities thus caused by the injury. For this statement to be true, the implicit assumption is the existence of the very injury from which the loss of amenities flow out of. In this case, after the gunshot caused the leg to be amputated, the very injury that was caused by the respondent did not remain and thus there can’t be any loss of amenities flowing out from it for which the respondent can be held liable. The second injury obliterated the first injury. To not just hold the respondent liable for the fictitious loss of amenities flowing out of a non-existent injury, but also for the loss of amenities arising from the amputation caused by someone else’s act; is not only illogical but also manifest injustice. In the judgement Lord Reid opines that not holding the respondent liable would be unjust to the appellant, but in my opinion what is more unjust is to hold someone liable for acts that he did not commit. The judges wrongfully extended the policy consideration by holding the appellant liable for all of the damages; for then the law assumed that the act of causing the initial injury and the gunshot were committed by the same person to generate collective liability, which is both unfair and illogical. The appellant should have been held liable for only the damages sustained from the date of the first incident up to the date of the armed robbery. Thus in my opinion, principles of causation suffered at the hands of public policy and sympathy for the victim.

Another case in which the court erred in establishing causation was in McGhee V NCB. The prolonged exposure to abrasive dust due to the act of not providing washing facilities was held to be the negligent act that caused the claimant’s injury i.e. Dermatitis. To better understand the problem with this judgement let’s first dissect the definition of negligence. It is negligence only if the act is a breach of duty that results in some injury to the plaintiff; and not merely increases the risk of an injury. The chain of events is as thus, negligent act – results in breach of duty – causes an injury to the claimant – liability is established on the defendant’s part. In this case, the medical evidence only showed that the sweat inducing hot conditions of the workplace along with the flying abrasive dust could have resulted in Dermatitis. Considering this evidence, it can only be argued that the presence of abrasive dust and the absence of washing facilities contributed to increasing the risk of the injury and it can’t be said that they caused that very injury, for there did not exist any medical backing for that claim. It is important to note that merely increasing the risk of an injury does not invite liability under tort law. In this case, the trial judge had correctly pointed out that causation cannot be established between the defendant’s ‘negligent’ act and the claimant’s injury by testing it against both, the but-for test and on evaluating it on a balance of probabilities. The but for test failed because the plaintiff couldn’t prove that but for the negligent act of not providing washing facilities, the plaintiff wouldn’t have suffered the injury. Secondly, on a balance of probabilities, due to the lack of medical evidence in proving disease causation, it couldn’t be proved that the defendant’s breach of duty caused the claimant’s injury. The appellant court erred in conflating causation with probable attribution. It is important to restate that intuition of causation is not causation. 

In Fairchild, Lord Hoffman recognized that sometimes judges have a tendency to vaguely refer to policy considerations in order to avoid explaining intuitive reasons for not adhering to the common law. Thus the court wrongfully took a leap of faith by amounting an increase in the risk of injury to be the same as causing the injury. Another problem that arises out of such policy arguments is that such policy says nothing more than ‘injured claimants should recover’ and therefore it is too wide a precedent to be set in an absence of boundaries. It can be used in any case where the judges want to divert from the casual requirements of the common law. In McGhee V NCB, Lord Wilberforce said, “It is the creator of the risk, who ex hypothesi must be taken to have foreseen the possibility of damage and should thus bear its consequences”. I argue that since the court assumes increasing the risk of injury to be the same as causing the injury in such cases, no matter what precautions the employer (creator of risk) undertakes, given that there are always going to be certain occupational hazards associated with the job (asbestos dust, or abrasive materials); in any employee litigation regarding disease causation, some or the other act of the employers can be termed as negligent and thus causation will be assumed, notwithstanding whether the employer’s actions actually caused the injury or not. This unreasonably prejudices the employers in dispensation of justice, and thus in my opinion is both a bad legal precedent and policy. The precedent set in Fairchild was wrongly used in Sienkiewicz to hold the employer liable for all of the damages sustained by the deceased, even though 85% of the disease (Mesothelioma) was attributed to the deceased’s home environment and not the place of employment. This case (among others) shows how cases like Fairchild and McGhee have set an unsound precedent of causation in the common law jurisprudence.

Conclusion: 

Lord Phillip famously said, “The law of causation does not deal in certainties, it only deals in probabilities”. But, it is imperative that we probe the limits of these probabilities. We cannot apply a mechanical test to establish causation in every situation but dilution of causal standards without strong justification to do the same is a bad precedent, for it shows that the common law jurisprudence can be replaced by judge’s subjective views on justice.

Family Courts and the Fluctuating Fortunes of Women

Born out of the political and social movements of the 70s and 80s to make gender justice more accessible and less intimidating, the Family Court as an institution is peculiar for more reasons than one. It adopted an inquisitorial system of adjudication in which judges wear more than one hat, and sometimes transition from a judge to an elder sister (Basu, 2012). The motivation for adopting innovative adjudication arises from the overarching directive of making sure that ‘survival of women doesn’t come next to technical jargon’ (Agnes, 2012). It is imperative to note how the family courts’ answer to the question of gender justice is procedural and not substantive. Even with respect to procedure, there is a deep seeded conflict between the courts’ objective to ‘preserve the institution of marriage’ and ‘welfare of women’. To believe that these two issues can be addressed simultaneously and adequately, is to invisibilise the ‘family and marriage’ as a site of violence (Johnson, 2000). The courts espouse an unhealthy obsession with the preservation of marriage often at the cost of those very women that it was instituted to protect and most importantly hear. 

Foucault in his book Discipline and Punish makes the argument that certain institutions exercise power not through the overt act of punishment as a spectacle of public torture but by discipline. The institutions reach out and manipulate the bodies of people to be caught up in a system of ‘constraints, prohibitions, and obligations’ to discipline. This analysis specifically applies to family courts because as opposed to all other courts that hand out visceral forms of punishment (Jail time, hefty fines, and seldom - death), family courts discipline the body through the law. The family courts while mediating the dilemma of constraint and freedom (Das, 2020) entangle the bodies of women in such obligations and prohibitions, and themselves become a site of violence. Thus, the fluctuating fortunes of women are purely oscillatory in nature in which they move from family to courts, from violence to violence. The absence of any assistance or representation in courts severely hinders a woman’s capability to argue for justice. Evidence has shown us that women who accuse their husbands of bigamy are not only confronted with the unrealistically high standard set for proving bigamy, but also risk putting their own marriages in jeopardy (Agnes, 1995). In an institution which is arguably the most paternalistic among others, and embodies patriarchal ideas of organization of society and distribution of work according to gender – a lack of representation means that the project of gender justice remains unachieved. The decision to make family courts lawyer free was to divorce the notions of winning and losing from the ‘preservation of marriage’ as an overarching aim, and yet the representation versus re-presentation dilemma (Spivack, 1983) is manifested through judges and their pronouncements that dictate the fortunes of these women. The concept of gender justice is often lost in translation between the aims and realities of family courts. 

Violence to Violence:

There are parallels to be drawn between Spivacks’ argument of how the colonizers committed epistemic violence by theorizing the identity of the colonial subject as the ‘other’ and how the family courts treat women in judicial spaces. The idea of epistemic violence is rooted in the idea that ‘a whole set of knowledge is disqualified as inadequate to their task or insufficiently elaborated; naïve knowledge, located low down in the hierarchy, beneath the required level of cognition” (Spivack, 1983). Thus the family courts, through their judges commit epistemic violence unto the women (as ‘other’) when they treat their lived experiences as beneath their personal understanding of circumstances and the institution of marriage, thereby pronouncing judgments invalidating the women’s voices and privileging their own. Foucault argued that given the chance, the sub-altern can ‘speak and know their conditions’ and Spivack further asked the question, ‘Can the sub-altern speak?, but I think a third very important question needs to be asked i.e. “Even if the sub-altern speaks, can and will the institutions listen?.

Constraints to Gender Justice:

Basu is her paper argues that we cannot expect satisfactory outcomes only by changing the forums and forms of ‘alternate dispute mediations’. She also critiques the idea such forums can provide a new form of listening and speaking to the marginalized without altering the fundamental logic of marriage encoded in the law. Derrida, in his book Of Grammatology argues that all power is established through texts, and to de-construct oppressive narratives and meanings, one has to trace the logo-centric development of meaning and authority, and then deconstruct it. Therefore, it is important to see how the normative understanding of marriage has established itself in the text (law) and is wielded by the judges to marginalize the already marginalized. 

In Kailas Vati, a case of RCR, the court establishing primacy of a husband over the right of deciding matrimonial house, thereby effectively eliminating considerations of woman’s aspirations, her career and most importantly her choice. In Harvinder kaur v Harmander Singh, Justice AB Rohatgi made the sexist observation that ‘in today’s society the multiplicity of divorces are proportional to the emancipation of women’ thereby suggesting that emancipation of women is subservient to the institution of marriage. Moreover he opined that marriage is sacred, and introducing constitution in it would amount to introducing a ‘bull in a china shop’, and pronounced the woman as the ‘breaker-up of the home’. The trend of maligning the character of women is quite evident in the case of Indira Sarma v VKV Sarma. Indira had suffered financial difficulties due to the defendant leaving her. Despite there were no marital ties, she filed for maintenance. Going against Chanmuniya, the court not only refused to give any relief to Indira, but went out of its way to call her a concubine. For an institution that proclaims itself to be the champion of gender justice, such instances are highly shameful. Similarly in Savtri Pandey, the wife had filed for divorce under desertion due to the husband having withdrawn from matrimonial responsibilities by virtue of having an affair. Even when desertion was found, the court refused to grant relief to her because the marriage was not consummated. The court held that she had committed a matrimonial wrong by not consummating. It reinforced the idea of the ‘role of a woman’ in marriage and normative obligations attached to that role. The court effectively took away rights from her and condemned her to that failed marriage, while leaving the man free to engage in extra marital affairs. The court in Animesh Tiwari, going by the person subjective test (as held in Dastane) of cruelty held that since the wife was from high society, she must have felt more humiliated by Animesh’s act of slapping and humiliating her, thus qualifying it as cruelty. The significance of the ‘high society’ reasoning is that by expressio unius est exclusion alterius, the court is of the opinion that people from ‘low society’ do not feel as humiliated when the same acts be committed against them, and in a case of such litigation, they will not be afforded the ground of cruelty. 

Free to do gender justice?

Naveen Kohli, and Amardeep show us that the courts are willing to depart from strict technicalities when it acts as a hindrance to justice. However the application of such sound doctrinal interpretation is very selectively used, and more often than not, suspended when it comes to gender justice. Despite that a few cases suggest to some hope. The Delhi HC, in Garg v Garg established the progressive logic of equality vis-à-vis the decision to establish the matrimonial home. The court recognized that reasoning in Kailas Vati is regressive and such interpretation has to change with time. Chanmuniya saw how the apex court expand the definition of 'wife' within the meaning of section 125 CPC that entitles the 'wife' or 'divorced wife' to maintenance, by arguing that such safeguards should be available to women who aren't legally married, but have lived together long enough, for it would be wrong to allow a man to take benefit of such a marriage like arrangement without being held liable under the same. In Geeta Hariharan section 6(a) of the Hindu Minority and Guardianship Act that reads "Natural guardian in the case of a Hindu minor: in the case of a boy or an unmarried girl—the father, and after him, the mother" was challenged as unconstitutional, on basis on Article 14 violation due to the words 'father, and after him, the mother'. Albeit with some ambiguity, the apex court ruled that the section has to be read in a manner such that the mother and father have equal rights to the natural guardianship of the child, and no subordination between genders exist. 

Finally, it is important to not forget that gender justice does not merely mean justice for women. In a country where non binary population still does not enjoy the full range of rights, the Arun Kumar judgment breaks stereotypes. The court held that a trans-woman comes under definition of ‘bride’ under section 5(iii) of the HMA, and she had the right of self-determination as  held in NALSA and Navtej. The court held that such meanings have to transform with the time.

To conclude this reflection on the project of family courts I'm reminded of Foucault when he said, “Humanity installs its violence in each of its systems and proceeds from domination to domination”. The project of the family courts awaits its transformation. 

P.S: The phrase 'fluctuating fortunes of women' has been taken from Family Law lectures held at Jindal Global Law School.

Reading the Law through Derrida

The reaction of most people reading the IPC for the first time is that of intrigue and utter confusion. The text is overtly archaic and anachronistic. The width of acts it criminalizes and the carte blanche it gives to the state and its functionaries to prosecute at their whim is truly damming. Someone once quipped that the real constitution of our country is the CrPC because it defines the power relations between the state and the citizens. The IPC is the tool that dictates who is a criminal and who is not. It defines what crime is and how to infer the crime from the circumstances. It gives the vocabulary of criminalization. And it gives it exclusively to the state. The vocabulary of crime is built on language.

It can be argued that it's not just the function of the courts to interpret the law, but also of all the advocates. When arguing, you'll invariably have to interpret words in specific ways. I remember telling one of my friend’s that the bare acts are the tools of the game of law, and then it is up to us how we use those tools to win this game. But the main focal point still remains words and the meaning behind them as people who enacted them would’ve intended it to be. And that leads to a more fundamental realization about not only the IPC but for the totality of Law, which is the sheer importance of words and texts. Legal language defines the bounds in which we are to remain a free individual and actualize our humanity. The range of our rights, freedom and entitlements are all centered around and defined by the words that are used in such legal texts. It is a tragedy that law students don't study much about the semantics of such texts more deeply, and more importantly about the historical development of how these very selective words came to be used in statutes and not others. Especially when they are transitioning from a vernacular vocabulary to a legal one. Take for example, the attempt-preparation dilemma in Joint liability. What can be qualified as attempt in law might not be looked as attempt in vernacular English and day to day conversations, and vice-versa. Or, how did words like ‘lascivious’ and ‘prurient’ used in section 294 of the IPC come about. An understanding of how language and text evolve and shape our world would give us a more comprehensive picture of the subject.

While investigating this concept, one’s mind invariably flutters to Derrida. He talked about how every authority is founded in texts, and that if we deconstruct those very texts, it can lead to the deconstruction of those very power structures that the text upholds. There is a legitimate way of thinking about how to manifest this approach of deconstructionism in IPC (or any legal text). For example to deconstruct the attempt/preparation binary, we will necessarily have to de-centralize the logocentric development of law around the word or concept of attempt. In the binary, Attempt is privileged over preparation, and is as much defined by the absence of the other in the binary as much it is defined by the presence of itself. We can perhaps apply such philosophical enquiries to when we as lawyers argue for what constitutes an attempt and what constitutes as preparation, or other areas of law as well.

Derrida also talked about the tension that exists in any text, of 'what the text manifestly means to say and what it is nonetheless constrained to mean'. This sentence is very interesting when applied to legal texts. Does this mean that a deconstructionist approach can unlock wider and newer meanings of the text and thus newer and wider degrees of freedom, or even altogether new rights and entitlements? One can't help but draw parallels to the right to privacy judgement and how it was held that the right to privacy flows from Art. 21. Or, when the Delhi HC in Naz foundation V Govt. of NCT of Delhi opined that sex within the meaning of Article 15 also means a right against discrimination based on sexual orientation. These can be looked at as legitimate examples of a deconstructionist approach. The court deconstructed the gender binary by tracking the logocentric development of the how the law interacted, defined and criminalized sexuality. It deconstructed the binary of heteronormative/non gender binary by displacing the privileging of one over the other. In a way deconstructionism espouses values of Article 14 in itself. Another very interesting thing Derrida said was about the concept of Differnace. In French, the verb defferer means to both 'differ' and 'defer'. Derrida wants us to realize that texts evolve in their meaning through time. This beautifully and elegantly captures the legal evolution of rights and legal concepts. It is evident from when we interpret the same text as meaning something entirely different from what it used to mean earlier in law. For example right to life is not just a right to not be killed. It is also a right to live with dignity, a right to sexual autonomy, a right to personal privacy, a right to human liberty. All these new dimensions were expanded and re-imagined by the court aided by the legal imagination of the litigants. The constitution gives us the right tools within itself to constantly keep re-imagining itself and to unlock newer meanings and rights. As Justice Subba Rao once said, “The constitution is only permanent, not eternal”.

Hauntology is a term coined by the French Algerian philosopher Jacques Derrida. Derrida used the word to describe how we never encounter things as fully present. In all of our experiences, the present is always mixed up with the past and the future. The concept refers to persistence of the elements of the past in the present and even the future. As if they're the ghosts that keep haunting.

The IPC and most of the colonial laws are hauntological in nature. The ghosts of colonial yesterday are still kept alive through the text of IPC. They're invoked to reality whenever someone is booked under sedition, UAPA, obscenity etc. It’s as if Macaulay's ghost still whispers through the black ink into the ears of the law. The ghosts of our colonial past affect us in real ways through the laws that never changed. Laws that reflect a morality stuck in time. There are rare moments like the reading down of Section 377 that reflect a disjoint in this continuum. An act of transformation. The court exorcized the haunting of colonial overlords when it said, “The aim of the constitution is to transform the society and not to entrench and preserve the pre-existing values of the majority”. The constitution and the values it imbibes aren’t just abstract ideals. They are tools for crafting a better society. A tool for not only defining the constraints of the state, but also a tool to correct and redefine the social relations within the citizens themselves. The constitution is not hauntological because it represents something entirely new, entirely different. The legal imagination that was imbibed in the nation through this document represented a fracture in time. In Pandit Nehru’s words, "the soul of a nation long suppressed had found utterance". As argued above, it is the constitution that we have to invoke if we have to lay the ghosts of colonial pasts to rest. And although, the past never stops to dictate the future by causality, we can reclaim the future from the clutches of the past by making sure that the laws aren’t still shaped by a morality stuck in past.

Aims and objective - a year in Constitution

The Indian Law Project is an attempt at developing and articulating a shared collective vocabulary for a vivid legal imagination based around the interface of life and law. 

The draft of this post was written on the Constitution day i.e. 26 November 2020 - a year where we have invoked the constitution more than ever, perhaps. As Gautam Bhatia points out in a podcast, this is quite unique because the Indian society does not have a very robust relationship with the constitution. The document is not a part of the popular imagination of our society and the citizens do not hold it in as much reverence and sacrament as say, the Americans. That is not a value judgement, but an observation. This year, that started with the CAA-NRC protests saw the constitution and the constitutional vocabulary translate into everyday conversations. Rallies and protests were held where Article 14 and the preamble were printed out and read. The citizen was finally reclaiming the document as his own. I wonder, if the constitution is still seen as an elitist liberal imposition on an inherently illiberal population. The protests showed that the youth of this country is well versed in the vocabulary of rights, and entitlements. And it is important to keep reminding ourselves and the state, the difference between the two. 

We are still grappling with the travesty that Covid-19 is, with every day still worse than one before it. The constitution and the courts have played a crucial role in this by their voices (or lack thereof). The migrant workers crisis was/is one of the worst humanitarian crisis we've witnessed in recent times. The courts were called to play a crucial role in that. How it performed is largely agreed upon. An extensive documentation of the Coronavirus and the constitution exists on Gautam's blog.

We also saw the state turning to technology to combat Covid-19 crisis and the myriad privacy and ethical concerns arising out of it. The mandatory use of Aarogya Setu (which was later made voluntary, but to not much avail) and the state's contradictory stand on it is symptomatic of the larger issue of arbitrary state tech-policies. The recent release of the back end code of the application saw some people accuse the state of deceiving the people by releasing a test backend code and not the final production code. A PIL has been filed against this matter. This month ends with a call for responses to the Data protection and Empowerment Architecture (DEPA). I've been involved with formulating comments on the draft paper through a policy center - and the comments do not look good. I'll release a separate post in it soon. I will end this tech determinism with the rather sad yet funny response of the CBSE to the RTI filed by the Internet Freedom Foundation on their use of a Facial recognition Technology for distributing marksheets. When asked as to under what regulation is the FRT authorized, the CBSE replied by saying there is no need for any legislation or any regulatory framework because what we use is a facial matching system, and not a facial recognition technology. The difference is best known to them. Again, the constitutional ideal of privacy and dignity suffers.

I end this post with the title phrase on the Indianconlawphil blog, which has largely inspired me to not only take up the law in some sense, but to also spend more time and effort in understanding it.

"To no one will we deny or sell, or delay right or justice"