Previous: Breach of duty

Introduction

In the tort of negligence, we know that there must be a duty of care; a breach of that duty of care and damage. Causation is a concept consisting of two elements which helps limit liability. The first element of causation is termed ‘causation in fact’: at least in part, the damage caused to the claimant must have resulted from the defendant’s breach of duty, or in other words, the defendant must have caused the damage. The second element is known as causation in law, which requires as a matter of policy that damage is not too remote in order to avoid disproportionate liability.

‘But for’ causation

So how does the law decide whether the defendant caused the damage or not? Usually, this point does not arise, the cause is usually obvious. However where it is not, the courts use the ‘but for’ test, which asks:

But for the defendant’s action, would the damage have occurred?

If the answer to this question is ‘no’, liability will be found. Another way of phrasing the question is to say ‘if the defendant didn’t act, would the damage have occurred?’

There are many examples which illustrate the application of the but for test. In McWilliams v Sir William Arrol [1962], supplying a safety harness would not have prevented the damage as the claimant would have refused to wear it. Similarly, in Barnett v Chelsea & Kensignton Hospital [1969], a negligent failure to diagnose arsenic poisoning did not give rise to liability as the defendant would have died even if diagnosis has occurred, and in Robinson v The Post Office [1974], no liability was found in negligently not waiting 30 minutes before administering a full dose of anti-tetanus drug as no reaction would have been visible 30 minutes after administering a test-dose...

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