Conclusion
What are we left with? A liability which extends beyond intentional harm and is expressed by a harm-verb in the active voice - a person is liable if he kills a cow, burns a house, breaks a vase, and so on - will send the law down a cul-de-sac.
The blindness of the alley may long remain concealed if the system resolutely insists on treating the question whether the defendant killed, burned, broke, etc. as an issue of fact, not to be mediated by any test. Defendants will want a test. If juristic authority once accepts the challenge, that test is bound to be inconveniently narrow. Such verbs require the damage to be the defendant’s act. Some version of Gaius’ ‘bodily force’ will have to be adopted. There is no other possibility.The narrow test cannot be adopted without at the same time being supplemented, since, though it will solve the problem of the active harm-verb,it will contribute nothing to the larger problem of the ultimate reach of liability. Supplementation is almost bound to begin before the inconveniently narrow test crystallises. The reason is that, long before the limitations of‘he killed, burned, broke, etc.’ are fully explored, it will be obvious that some defendants ought to pay who manifestly cannot be reached as doers of those deeds, not even with the help of a well-meaning and inscrutable tribunal of fact.
In the end the law’s way out of the cul-de-sac is likely to be, not only general supplementation of the liability based on the active harm-verbs, but permission to plaintiffs to use the supplementary action for all cases. Since wrongfully causing to be harmed naturally includes all wrongful harming, the supplementary action has only to be given its head. The original preference is thus in effect reversed: ‘if he burned the house’ gives way to ‘if he caused the house to be burned’. At that point the system must finally confront the real problems of remote causation, as opposed to the semantic impediments put in the way by harm-verbs in the active voice.