The ‘BUT FOR’ Test
The ’But-For’ test is a traditional test used by the Courts in order to decide the cases involving tortious conducts on the part of the defendant. It works when the Plaintiff proves that had the defendant not committed the negligent or the tortious act or omission, no injury would have been caused to the Plaintiff. The tort law aims at reforming the position of the Plaintiff by bringing him back to the position in which he would have been had the tort not been committed. The But-For test has many loop holes and while the Courts apply this test, there remains lacunas in the laws as well. No doubt that the Courts still use this test but many of the Courts tend to use other methods to form the causation link. It is very likely that the Courts would soon depart from this test and would not use this test for any tort cases at all. There are some issues and problems associated with the But-For test. One of the hurdles of using this test is that it is almost impossible for the Plaintiff to prove that he would have been in a better position had the defendant not been involved. In the Athey’s case (1996), the Court held that it is not possible for the plaintiff to prove this hence the but for test fails here. An alternative is that where ever a link is established between the defendant’s act and the injury, the causation can be proved. Hence, the but for test does not work anymore in such cases. Instead of the but for test, the Courts may use the fact that where the defendant materially contributed towards the injury of the Plaintiff, he must be held liable under the Tort law. This establishes a causation link which is required to prove tort.
Tort is a French word which means a wrongful act. According to definition, tort is such a wrongful act if committed, the remedy is provided in the form of liquidated damages.
There are certain tests established by court of law using different precedents to see if damage done is intentional or not. And if it is intentional, whether it is punishable or not. ‘But for’ test is the similar kind of test. In order to know when and how can the Courts depart from the But-For test we need to know about the other available tests which can be used as an alternative. Before we dive into it, let’s talk about the evolution of tests in law of torts.
The first test that was established in tort law was ‘Neighbor’s Principle’. Lord Atkins introduced this principle in Re Stevenson’s case. According to this test, everyone owes a duty of care towards other. hence, the defendant will owe duty of care towards the plaintiff. The requirement of this test was that each and every person owes a duty of care towards the other person, and therefore, bound by it.
As Neighbor’s principle was too broad to impose the reasonable duty of care, Lord Wilberforce introduced ‘Anns Test’ in Anns case. This test is also called ‘two stage test’. In this test, Lord Wilberforce encircled the too broad duty of care that was established by Lord Atkins. The requirement of this principle or test include a reasonably foresee harm and the relationship of proximity.
Still being too extensive, the Neighbor’s principle was further summarized in Re Caparo case. With reference to this case, the third test is called ‘Caparo Test’. One more principle was added in this test. According to ‘three stage test’, the requirements for establishing a reasonable duty of care included reasonable foreseeable harm, relationship of proximity and fair, just and reasonable duty of care being imposed. In Barnett’s case, a patient who was suffering and seriously ill, got discharged from the hospital, even though it was negligence at the hospital’s end but the supreme court applied ‘But for’ test and held that he would have died even if he had been examined and admitted for treatment. As he has died from arsenic poisoning.
As to talk about the evaluation of tort law It is stated that now this principle But for the test is being used in Criminal as well as civil cases for example in R v. White (2010) and Tuita De Villiers (2017) accordingly.
It can be inferred from the above discussion that abandoning the but for test is eradicating the causation of the tortious event. The first standards adopted in the same judicial setup consistently establish the requirement to pass the test. The circumstances under which the test is not currently used are those that are present causation cannot be reasonably expressed. However, the law does not need this level of proof. The problem is not that the use of the But For irrelevant or not at all the root cause. The problem in such cases includes the method and level of verification that it will perform is legally and not rational goals, a fundamental part of causation, including the middle half has passed the test so far. A case study indicates that the method, however the test does not apply in these cases, does not require the omission of part of the reason in the event. The causal method is not acceptable, it is currently acceptable for those who in cases of negligence, do not allow any remuneration. The concept presented in the test is currently clear and inevitable…
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