But for Test
The "but for test" is a legal principle used to determine causation. It asks whether the harm would have occurred "but for" the defendant's actions. In other words, it examines whether the harm would have happened anyway, regardless of the defendant's conduct. If the harm would not have occurred "but for" the defendant's actions, then the defendant's actions are considered a cause of the harm.
7 Key excerpts on "But for Test"
eBook - ePub- Sanmeet Kaur Dua, Chris Turner(Authors)
- 2019(Publication Date)
- Routledge(Publisher)
...This may actually be quite difficult to do, particularly where the incident leading to the damage has been the result of multiple causes or where the damage suffered is of an unusual type. Causation is also clearly appropriate to other torts, not just negligence. Even in those torts that are strict liability and where the claimant as a result is relieved only of the burden of proving fault causation is still an issue and the claimant must still show a direct link between the defendant’s acts or omissions and the damage suffered. ‘but for’ test The main test for establishing factual causation in an action for negligence – but for the defendant’s breach of duty the damage would not have occurred Causation is necessarily measured against the facts of the individual cases. Nevertheless, as in the other areas, policy can still play a big part in decisions. In establishing negligence the courts will measure causation in two different ways: ■ according to the ‘but for’ test, that the defendant’s negligent act or omission did in fact cause the claimant’s damage (causation in fact); ■ by establishing that the damage is still sufficiently proximate in law to hold the defendant liable to compensate the victim (causation in law – more commonly referred to as remoteness of damage). (This latter area is the subject of section 4.5.) 4.2 Causation in fact and the ‘but for’ test The simplest proposition, and the effective starting point in establishing causation, is to say that the defendant will only be liable in negligence if the claimant would not have suffered the damage ‘but for’ the defendant’s negligent act or omission. The test was explained simply and precisely by Lord Denning in Cork v Kirby MacLean Ltd [1952] 2 All ER 402. In many cases where the negligence of the defendant is obvious the facts allow the test to operate simply and straightforwardly...
eBook - ePub- Timon Hughes-Davies, Nathan Tamblyn(Authors)
- 2019(Publication Date)
- Routledge(Publisher)
...Particularly in the field of industrial diseases caused by asbestos, the courts have struggled to find a clear and consistent approach, and there remain inconsistencies in the way in which the court considers the issue. The primary test applied by the courts in determining causation as a fact is the ‘but for’ test: the claimant has to show that, but for the breach, the damage would not have occurred. So, if the defendant is able to show that the damage would have occurred anyway, the claimant will not succeed. Meeting the ‘but for’ test is, however, not always sufficient: the claimant also has to show ‘causation in law’ or legal causation. Even if the negligent act clearly caused the damage, it will not be held, as a matter of law, to have been the causation unless the claimant can show that the damage was a foreseeable consequence of the defendant’s negligence and that there was no intervening act that ‘broke the chain’ of causation. Causation is, therefore, a two part test: Did the breach, as a matter of fact, cause the damage? Does the law regard the breach as causing the damage? These are usually referred to as causation in fact and causation in law. ____________ 4.2 Causation in fact: the ‘but for’ test To establish causation in fact, the claimant has to meet the ‘but for’ test. That is, to show that it is more likely than not that the damage would not have occurred, but for the negligence of the defendant. Key case In Barnett v Chelsea and Kensington HMC [1969] 1 QB 428, three night-watchmen were suffering from stomach pains and vomiting. They went to the casualty department of the local hospital during the night. A nurse telephoned the on-call doctor, who advised the three men to see their own doctors in the morning. One of the men died later the same day...
eBook - ePub- Meixian Song(Author)
- 2014(Publication Date)
- Informa Law from Routledge(Publisher)
...Although the ‘but for’ test could not be satisfied, the majority of the Lords (three out of five) considered that the traditional causation principles should be modified due to the demand of justice and policy, as applying the ‘but for’ test would render the doctor’s legal duty useless and hollow. Evidently, there is a conflict of interest in law. The House of Lords resolved it by recognising that a required causal connection has been satisfied in order to make the doctor pay for his breach of duty as to warning the inherent risk. 3.2 Foreseeability and remoteness In insurance law, only the direct and efficient cause meets the statutory test, subject to the parties’ contractual agreement to the contrary; and the insurance market concerns itself with the question of foreseeability in terms of both the incidence of perils and loss. Insurance contract is a contract based on fortuity, which excludes voluntary conduct and inevitable and naturally occurring losses that can certainly be foreseeable from the coverage. Therefore, the foreseeability test seems even unpopular in the insurance context, as foreseeability might diminish the fortuity of the risk and loss. On the contrary, since tort law is fault-based essentially, a consideration of the subjective factors is taken into account when ascertaining the respondent’s liability, which is not shared in common with contract claims, in particular with insurance contracts. Therefore, ‘but for’ test in tort needs a subjective judgment in common sense of the moral impact, so that the respondent will not be liable for the loss beyond foreseeability, owing to his behaviour. In contrast, the insurer agrees to undertake the liability of indemnity of the loss simply within the common sense. The policy may state ‘the Policy is extended to include any unforeseen and sudden physical loss destruction or damage (hereinafter called Damaged or Damage) to Property Insured necessitating repair or replacement due to causes such as’...
eBook - ePub- Jane Lynch, Senthill Nachimuthu(Authors)
- 2018(Publication Date)
- CRC Press(Publisher)
...There must be a causal link between the breach of duty of care and the harm suffered. It is possible for a health professional to fail in their duty of care of a patient yet the health professional or employer might not be liable to the patient in civil law. The patient (claimant) must prove that the defendant’s breach of duty caused the harm. Two matters must be proved: that as a fact, the defendant’s breach caused the claimant’s loss; and the damage was not too remote. The courts use the ‘but for’ test to determine whether the defendant caused the loss, that is, would the claimant have suffered loss but for the defendant’s negligence? If the answer is ‘no’, then the defendant must logically have caused the harm and is liable. This element of causation is often the most difficult legal hurdle for a patient to overcome when pursuing a claim for compensation. Example of the ‘But For’ Principle A patient is seen in the outpatient department and undergoes tests on a lump for suspected carcinoma. X-rays and other tests are undertaken. Six months later the patient is re-referred by the GP and is again seen in the outpatient department. At this point they review the records and discover that the patient had been diagnosed with carcinoma six months previously, but for some reason the patient had fallen through the system. They now commence treatment. Questions ➤ Does the Trust owe the patient a duty of care? Yes, the Trust owes the patient a duty of care. ➤ Is the Trust in breach of the duty of care? It is highly likely that the Trust will be in breach of the duty of care for failing to identify the diagnosis sooner and failing to treat the patient sooner...
eBook - ePub- Kenny Chin(Author)
- 2014(Publication Date)
- Routledge-Cavendish(Publisher)
...Again, the reasonable man test is applied to decide whether the precautions are practicable or otherwise. Special skill The standard of care expected from a professional or skilled person is that of a reasonable person possessing the professional or special skill. Therefore, a lawyer and accountant are measured by the standards expected from a reasonable lawyer and accountant. Further, learner drivers, trainee doctors and nurses are legally measured by the standards of a reasonable driver, qualified doctor or nurse. This rule prevents institutions using personnel on training to execute risky tasks and if they are used they should be supervised. Causation and remoteness of damage The last hurdle for a claimant is to prove that the damage suffered was caused by the defendant and that it was not too remote. Causation This is concerned with the issue of whether, as a matter of fact, the damage was caused by the negligent act. If there could only be one cause, the so called ‘But for Test’ will be applied. If the harm would not have occurred but for the defendant’s breach of duty, the defendant is liable. In Barnett v Chelsea and Kensington Hospital Management Committee (1969), a doctor in the defendant’s hospital sent the plaintiff’s husband away telling him to see his own doctor. The patient died from arsenic poisoning five hours later. Although it was clear that the doctor was negligent, the court held that he was not liable for the death because the medical reports showed that the patient was beyond help and would have died in any event. It is not always possible to give a ‘yes’ or ‘no’ answer to the But for Test. In McGhee v National Coal Board (1973), the plaintiff contracted dermatitis after cleaning out the defendant’s brick kilns. It could not be sure if the defendant actually caused the illness suffered, but it was found that no washing facilities were provided for the plaintiff who had to return home unwashed...
eBook - ePubMedical Law Handbook
The Epidemiologically Based Needs Assessment Reviews, Low Back Pain - Second Series
- Raj Mohindra, Alison Davies(Authors)
- 2017(Publication Date)
- CRC Press(Publisher)
...more than 50% likely) that the breach of the duty of care caused the damage complained about. Loveday v Renton (1990) 1 Med LR 117, CA This was a class action. P were about 200 claimants who had suffered brain damage after receiving pertussis vaccine. On the basis of medical case reports and other medical evidence describing a temporal relationship between the vaccination and brain damage, P alleged that the brain damage flowed from receiving the pertussis vaccine. Held: P did not recover. The scientific evidence did not establish on a balance of probabilities a causal link between brain damage and the pertussis vaccine in young children. The clinical proof had to equate to the balance of probabilities standard. 11.2 THE ‘BUT–FOR’ TEST 11.2.1 The core principle used to establishing a causal link is the but–for test: 3 (i) If the damage would have resulted with the breach of the duty of care, and (ii) the damage would not have resulted in the absence of the breach of the duty of care, then (iii) the breach of the duty of caused the damage. 11.2.2 Clearly this could be incorrect if the breach of duty was subject to a confounding variable, but common sense is added when interpreting this test. 11.2.3 Using this definition, if the outcome would be the same whether there was a breach of the duty of care or not, then the breach did not cause the harm complained about. This is demonstrated by the facts of Barnett v Chelsea & Kensington Hospital Management Committee (see Section 9.2.1). Here the nightwatchman attended the accident and emergency department but was not seen by a doctor. The failure to attend the patient was a breach of the duty of care. However, it was found that even if the watchman had been seen by the doctor the watchman would still have died of arsenic poisoning...
...omission caused the damage. 2 Claimant must prove causal link on a balance of probabilities. 3 This may be difficult if there are multiple causes or the type of damage is unusual. 4 Policy considerations are still crucial to causation. 5 Must show: defendant’s act or omission caused loss or injury to claimant (causation in fact); and sufficient proximity between act and damage to fix defendant with liability (causation in law). 2.3.2 Causation in fact 1 Based on ‘but for’ test – Lord Denning in Cork v Kirby Maclean Ltd (1952): ‘if the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage …’. 2 Often straightforwardly proved by the facts (Barnett v Chelsea & Kensington Hospital Management Committee (1969)). 3 However, problems may exist in proving cause: a) it is more about apportioning blame than scientific enquiry; b) level of knowledge/scientific advance may make pinpointing exact cause impossible (Wilsher v Essex AHA (1988)). c) the case law is often contradictory: it may be unfair to the claimant (Hotson v East Berkshire...
