Question: The ‘but-for’ test is no more than a legal aid, for the choice of cause rests ultimately on common

sense evaluation. Dictates of common sense leads sometimes to disregard of the ‘but-for’ test.

Introduction:
The but-for test is a commonly used test in both tort law and criminal law to determine actual causation. In
legal sense, causation refers to a relationship of cause and effect between one event or action and its result
or consequence. The but-for test, simply put, within a scenario or case it is being applied on, objectively
asks: ‘if harm would not have occurred to the claimant but-for the acts/omissions of defendant, the
defendant is liable’. In other words: ‘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 . . .’.[1] Lord Denning in Cork v Kirby Maclean Ltd (1952)
However, causation under negligence is hard to determine as each negligence case is subjective and not
objectively obvious on the mere face of it. Therefore, given the amplitude of subjectiveness that a case of
such nature may entail, employing a rather objective testing method alone while deciding on the matters it
encompasses, doesn’t warrant ends of justice being met. Hence, for causation to establish, it must be proven
that the damages or harm sustained by the claimant were due to defendant’s action with due consideration
of ‘all’ other factors and forces playing their roles in culmination of a final result or an outcome in purview
of foreseeability of the potential harm, remoteness of the damage and proximity between parties.

Causation in Tort:
In principle, causation under tort law maybe be understood contemplating on following questions associated
with any standard tort caselaw wherein a defendant (or alleged tortfeasor) hurts a claimant (or tort
complainant):
1) What the defendant (or alleged tortfeasor) did (or didn’t do)?
2) What the claimant (or tort complainant) suffered as a consequence and not as a subsequence?
3) How the sufferings of the claimant resulted from the conduct (actions or omissions) of the
defendant?
First two of the aforementioned aspects can easily be differentiated and articulated within their meanings
and sense, since how defendant behaved (the cause) can be easily be distinguished from what claimant
suffered (its effect). While both are provable facts within any system of law, the third aspect, however, is
not a fact, it is the relationship between those facts. This relationship fundamentally is causation.
However, in tort law, proven or established negligence of one party resulting in losses or damages to other
party, alone, doesn’t necessarily give rise to tortuous liabilities. In context of this discussion, ‘but-for’ test
for establishment of causation in-fact is merely a prerequisite which works combinedly with proximate
causation to give effect to tortuous accountabilities and culpabilities. In the absence of either of these, a
party cannot be held liable.
Among landmark cases Donoghue v Stevenson [2] [1932] AC 562 which substantiated ‘negligence’ as a
separate tort and streamlined that lack of contractual privity is irrelevant bringing about an actionable claim
in case damage is sustained outside a contractual arrangement, established criteria that for negligence to be
proven, three factors must be taken into consideration:
 defendant owed a duty of care to the claimant;
 defendant breached that duty by acting below the appropriate standard of care;
 damage was caused by the defendant’s breach of duty that was not too remote a consequence of
the breach, i.e., that was a foreseeable consequence of the breach.

In another caselaw Caparo Industries plc v Dickman [3] [1990]1 All ER 568, the standard of ‘when a duty
of care is owed’ was established. This involved a three-stage testing on following criterion:
  Firstly, it should be considered whether the consequences of the defendant’s behavior were
reasonably foreseeable.
 Secondly, the court should consider whether there is sufficient legal proximity between the parties
for a duty to be imposed.
 Lastly, the court should ask whether or not it is fair, just and reasonable in all the circumstances to
impose a duty of care.

At one point, (before Caparo Industries plc v Dickman), another landmark case Anns v Merton LBC (1978)
established a two- part test as a standard test for determination of whether duty is owed or not. This involved
contemplating:

 Is there sufficient proximity between defendant and claimant to impose a prima facie duty?
 If so, does the judge consider that there are any policy grounds which would prevent such a duty
being imposed?

This was however overruled due to its broad scope under which it imposes general duty only by
virtue of proximity and because it unjustifiably put judges in position to decide on policy alone.

‘But-for’ Test and Common sense:

While there are some differences within several judicially formulated tests aforementioned above and
several others, a common principle which may be derived from the stated tests is causation-in-fact ought to
be evaluated combinedly while being juxta positioned with proximate- causation. Where former deals with
actual evidence and facts that proves fault of defendant causing harm/damage to the claimant, latter deals
with the proximity of the alleged cause i.e., it pertains to answering whether or not the defendant could
have reasonably foreseen the damage caused as a result of his/her actions/omission. For a successful tort
claim, this proximity needs to be close, direct, non-coincidental and normal circumstantial.

Here the objective “but-for” test can be applied to answer a question of the actual causation or causation-
in-fact. Proximate causation however, is a complicated legal concept. This is because determination of
proximate causation is subjective and is primarily based on opinions and options. Proximate causation asks
the question: if by any means defendant would have reasonably known the consequences of his actions and
yet he still decides to commit it negligently. This is precisely where commonsense should be employed in
rendering determination of proximity causation for imposition or disposition of tortuous liabilities.

Causation with multiple causes:

In real life scenario proving a causal link in-fact and in-proximity gets complicated when there are multiple
causes of the same outcome. The multiple causes can be categorized on following basis:

1) By virtue of their simultaneous occurrence with respect to time (concurrent causes)

2) By virtue of their consequential occurrence with respect to time (successive causes)
3) By virtue of their attributability diminishing in chain of events due to ‘an intervening act’ (novus
actus interveniens).

The multiple causes complicate the establishment of causation whereby not only limitation and shortcoming
of an objective ‘but-for’ test (for determining actual causation) is exposed but also the need to empirically
articulate the use of common sense (inherently subjective in nature) is realized (for determining proximate
causation). For the purpose of this assignment, the limitations and short-comings of the former (but-for test)
is brought to light however, contemplation of latter (empirical articulation of use of common sense) is
beyond the scope of this assignment.

Conclusion:
Both tort law and criminal law frequently employ the but-for test to establish actual causation. A link of
cause and effect between action and its result is referred to as causality in the context of law. In cases where
‘but-for’ test is used, it poses a simple question i.e.: "If harm to the claimant would not have occurred but-
for the defendant's acts/omissions, the defendant is accountable”. Where this is a tried, tested and useful
tool in establishing causation, it has its limitation and shortcomings, particularly in complex cases with
multiple causes where it is challenging to establish the causation due to uniqueness of each case. Therefore,
relying solely on an objective testing approach does not guarantee ends of justice being met. Therefore, in
order to prove causation, results from the objective testing should always be validated and verified with
common sense taking into account "all" other forces and factors that may have contributed to the final
outcome or result with due consideration and appreciation of the foreseeability of the resulted harm, the
remoteness of the damage, and the legal proximity between the parties.