What is But for test?
But for test states that, “the plaintiff would not have suffered a loss or causation could not have existed in the absence (but for the absence) of the defendant”. Lunney and Oliphant (2008, pp 210-211) have described in their book “Tort Law: Text and Materials” that the first test the claimant must overcome in setting up causation is but for test. If the claimant’s injury would have existed irrespective of the defendant’s negligence, the negligence is not causative of the loss of claimant.
But for test, is very much helpful, when one or more cause exists behind the occurrence of a loss to a claimant. For instance, In Joyce v Merton Sutton and Wandsworth (1996), the plaintiff underwent an operation which resulted in whole paralysis. The procedure itself was not importantly negligent, in that the plaintiff was discharged from hospital without appropriate advice and instruction. A vascular surgeon must have seen the plaintiff within the first 48 hours and he must have performed to deal with the blockage. In order to succeed on the causation point it was held that the plaintiff would have to prove either that had the vascular surgeon been requested he would have performed or that it would have been negligent for him not to do so. The appropriate test in this situation was to satisfy one of the two queries. First what steps would have taken if appropriate care had been taken or secondly what would have been the result of any further steps that ought to have been taken? In this case the plaintiff was capable to satisfy the 1st question by establishing that the harms would have been eliminated of appropriate care had been taken.
Using But for Test in the Law of Torts in imposing liability of the defendant
The but for test can be used to set up causation on the facts. However, it does not mean that, once this has been set up the defendant will be liable for all of the harm of the claimant. In other words, this test helps in determining is the defendant is actually responsible for the causation that has created a loss to the claimant. Satisfying the but for test may be itself is inadequate to set up causation for there may be a number of factual causes for satisfying the test. For instance, if one negligently throws a lighted match on to a newspaper there are at least two causes of the resultant fire which is the oxygen’s presence in the atmosphere and the negligent act of throwing down the match. As a matter of law however the oxygen is disregarded as a cause i.e. it is part of the normal environment and therefore is disregarded when recognizing the cause of some abnormal event. The But for Test cannot resolve all queries of factual causation. Indeed where there has been an omission to act or an act which does not in itself has physical consequences, it may not be a proper test. For instance, if a plaintiff harmed his leg through the negligence of a defendant and left disabled partially and if the plaintiff was shot in same leg by another person and as an outcome of the shooting the leg had to be cut off, then it can be considered as per, “but for test” that the first defendant is only liable for first harm. Irrespective of the amputation it would have been a continuing disability and this liability is imposed on the first defendant. The liability for the existing disability did not cease when the 2nd incident occurred. Hence the first defendant should be punished under law of torts.
In general, a plaintiff lodges a complaint against a defendant only when subject to loss by a defendant. When there are several reasons behind the occurrence of the loss, then the actual cause behind the loss has to be determined in order to take a legal action against a defendant. But for test is undoubtedly the best method in predicting the actual cause that created a loss to a claimant who has filed a suit under tort law. It can be understood that the but for test, stands as an important element in predicting the actual cause that created a loss to the claimant, in case of a punishing a defendant using law of torts.