PRACTICAL DIFFICULTIES IN PROVING CASES WHEN

“BUT FOR” PRINCIPLE IS APPLIED

CHAPTER 1

INTRODUCTION

Many crimes require a certain consequences to have been used by the criminal act. Thus, in murder
or manslaughter, the act must cause death. For how remote a consequence of defendants act should
be held responsible is the main question. It also means that the current condition or circumstances
would be different had an act or omission not occurred.

Causation is an expression of the relationship that must be found to exist between the tortious acts
and the wrongdoer and the injury of the victim in order to justify compensation of the latter out of
the pocket of the former. It is a very inclusive concept since it involves all the antecedents such as
active or passive, creative or receptive which all are factors involved in producing a consequence.
An actor is never liable if his wrongful act is not a cause of fact.

Concurrent causation is something which involves more than one factor that leads to the
contribution of the act at the end1.

In order to prove causation. First, factual causation must be established: it must be proved that the
death or the injury would not have resulted ‘but for’ accused conduct. Factual Causation is to be
defined in such a way as to link it with the scientific uniformity and the possibility of demonstrative
repetition2.

The ‘But for’ test can be simply and precisely articulated: A plaintiff must prove on a balance of
probabilities, that but for the negligence of the defendant, the plaintiff’s injury would not have
occurred. It is a traditional principle in the law of torts. But for cause has also been referred to as
a “proximate” cause.

1
Charles E. Carpenter, Concurrent Causation, 83 U. Pa.L. Rev. 941 (1934-1935)
2
Criminal Law, Nicola Padfield, Oxford University Press, 10th edition,2016.
The “But For test” has only a limited use as a test of causation in fact, and can never be used as a
test of legal cause3.

Professor Linden explained the test as follows:

The most commonly employed technique for determining causation-infact is the “but for” test,
sometimes called the sine qua non test. It works like this: if the accident would not have occurred
but for the defendant’s negligence, this conduct is a cause of the injury. Put another way, if the
accident would have occurred just the same, whether or not the defendant acted, this conduct is
not a cause of the loss. Thus the act of the defendant must have made a difference. If the conduct
had nothing to do with the loss, the actor escapes liability4

CHAPTER 2

EVOLUTION OF BUT FOR

Factual causation deals with establishing the actual physical link between the negligence and
damage. Stapleton stated the factual causation as a historical link between the defendant’s
negligence and the claimant’s injury.

In Athey v. Leonati5, Major J. defined the test as follows:

The general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff
to show that the injury would not have occurred but for the negligence of the defendant.

The basic test that the court uses to establish factual causation is but for test. But for the defendant’s
breach would the plaintiff have suffered the damage. If the answer is yes then the defendant is
liable and if the answer is no then some other facts are liable apart from the defendant. The main
purpose of this test is to exclude things that have no bearing on the damage.

Lord Denning introduced this term in law for the first time in Cork v Kirby Maclean Ltd.6 and the
test was first established in a classic case namely Barnett v Chelsea Kensington Hospital where

3
Charles E. Carpenter, Concurrent Causation, 83 U. Pa.L. Rev. 941 (1934-1935)
4
Allen M. Linden and Bruce Feldthusen, Canadian Tort Law (8th ed.) (Lexis Nexis: Toronto, 2006) at p. 116
5
[1996] 3 S.C.R. 458 at p.11
6
[1952] 2 All ER 402
the court found that the but for test had not been satisfied as the evidence showed that the patient
would have died any way of arsenic poisoning

In another recent case namely Bolitho v City and Hackney health Authority7 the court did not
find any causation between the claimant’s damage and the defendant’s breach on the basis of but
for test. There was a question to decide before the court .but for the defendant’s breach, would the
patient have suffered brain damage any way? The court asked for expert opinion who later opined
that most of the doctors would have done the same thing if they were in defendant’s place which
meant that the patient would have suffered brain damage any way. But some time the court
appeared to depart from the ordinary principle of but for test to secure justice to the plaintiff as can
be observed in Chester v Afshar8. In this case although the claimant failed to establish the ordinary
but for test, the court departing from the ordinary rule made the defendant liable for the breach of
duty owed to the claimant and the defendant was held in breach of duty by not warning the claimant
about the side effect of surgery.

Although the test, at first blush, seems beguilingly simple and straightforward, its application
proved to be difficult and at times resulted in harsh results. Professor Klar has argued that the
reason for this is that the but for test is evaluative and speculative in that it requires the trier of fact
to predict what would have happened to the plaintiff had the defendant not acted unreasonably.

The but for test involves many difficulties in proving causation.

First, It may be impossible for the plaintiff to prove that the defendant's negligence caused the
plaintiff's injury using the "but for" test. The impossibility must be due to factors that are outside
of the plaintiff's control; for example, current limits of scientific knowledge9.

Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby
exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that
form of injury10. In other words, the plaintiff's injury must fall within the ambit of the risk created
by the defendant's breach. In those exceptional cases where these two requirements are satisfied,

7
[1998] AC 232
8
[2004] UKHL 41,[23]
9
Hillel David; W. Paul McCague; Peter F. Yaniszewski, Proving Causation Where the but for Test Is Unworkable, 30
Advoc. Q. 216 (2005)
10
Roscoe Pound, Causation, 67 Yale L.J. 1 (1957)
liability may be imposed, even though the "but for" test is not satisfied, because it would offend
basic notions of fairness and justice to deny liability by applying a "but for" approach.

These two requirements are helpful in defining the situations in which an exception to the "but
for" approach ought to be permitted.

CHAPTER 3

CHALLENGES IN APPLICATION OF “BUT FOR” PRINCIPLE

The but for test is a test commonly used in both tort law and criminal law to determine actual
causation. The test asks, "but for the existence of X, would Y have occurred?" If the answer is
yes, then factor X is an actual cause of result Y11.

Of the numerous tests used to determine causation, the but-for test is considered to be one of the
weaker ones. There are often two reasons cited for its weakness.

Tenuous Relations Between Actions-

For example: Plaintiff was taking a different route to work than normal, because his normal route
was closed for construction. The defendant steals the plaintiff's phone. But for the victim walking
on the street that day, the crime would not have happened. Further, but for the city not closing the
street that day, the crime would not have happened. So in this scenario, the defendant would
actually shed some of his blame because of all of the other actions which led to the robbery, via
but-for causation

OVERCAUSATION

The classic example of over-determination stems from an example which uses a firing squad.
Under but-for causation, we cannot convict any of the members of the firing squad. We do not
know whose bullet killed the victim, and without having a specific defendant, the crime still

11
Charles E. Carpenter, Concurrent Causation, 83 U. Pa.L. Rev. 941 (1934-1935)
happens. So because of this over-determination issue, we see a major issue related to but-for
causation.

In Jordon12 a wound inflicted by D stabbing V was certainly a sine qua non of the death of V
because it lead directly to the medical treatment that according to the medical expert cause death.
It did not necessarily followed that the treatment was in law. The only cause of death. That
depended on the application of the further principles considered.

In another case of white13. D poisons V’s drink but V dies of natural causes before it has had any
effect on V, this conduct is not a but for cause of V’s death.

CASES INVOLVING A FAILURE OF ACT

Both acts and omissions can constitute negligent conduct. The "but for" articulation is ill suited
for cases where the negligence involves omission rather than commission. In such instances, the
question "Would the same injury not have been sustained but for the defendant's negligence?" will
inevitably be answered in the affirmative - "Yes, it would have been sustained regardless of the
defendant's failure to act" because the defendant's negligence consists of the failure to prevent or
alleviate an injury that is otherwise bound to occur. The appropriate formulation in such cases is
whether the same injury would have occurred "even if' the defendant had acted.

MULTIPLE CAUSES

A factor is a contributing cause for legal purposes if it "materially contributed" to the occurrence
of the injury, and a contributing factor is "material" if it falls outside the de minimis range, although
other cases have made reference to a "substantial" connection or contribution14. The de minimis
range has not been defined and its meaning clearly depends on the circumstances of each case.
Some guidance may be obtained From decisions that equate that term with a matter that is not
trivial or insignificant, with the term "insignificant" itself meaning "that which is of no importance;
trivial; trifling; contemptible". There is no requirement that a materially contributing cause be a

12
(1956) 40 Cr App E 152
13
[1910] 2 KB 124
14
Glanville Williams, Causation in the Law,1961,Cambridge L.J. 62 (1961)
sufficient cause, although some cases indicate, although not with any great clarity, that the attribute
of sufficiency is required.

The type of multiple cause situation the court has classified multiple causes into three types:

1. Multiple potential causes: there is more than one cause of the damage and it is not certain
which one actually caused the damage. It can be more problematic if those potential causes have
been developed over a long period rather than on a single occasion15.

Long term multiple causes can be following three types:

A. the claimant may have exposed to damage by the defendants in a range of different situations
and some of which were justifiable on the part of the defendant and some were not.

B. the claimant may have exposed to the same cause of injury by different defendants at different
times but the effect may be one-off in nature.

C. the claimant may have exposed to the same cause of injury at different times but the exposure
may have had cumulative effect.

2. Concurrent causes: there may be two actions or omissions occur at the same time and each
action or omission has the potentiality to cause the damage16. An example of this is Fitzgerald v
Lane and Patel where the plaintiff was hit by two cars at the time of crossing the road and the
medical experts could not state whether the injuries were caused by the action of one or other
driver or a combination of both There is another example of concurrent causes namely Bonington
castings v Wardlaws where the cause of the claimant’s disease was exposure to dust at work. the
defendants accepted the liability for excessive exposure of dust.

Concurrent causes also cover a situation like Fairchild v Glenhaven funeral Services ltd17 and
others.in this case the claimant had been exposed to asbestos dust during his employment with a
number of employers at different times in the year 1960.The medical experts were unable to say
which exposure with which employer was the cause of his illness.

15
Jill Lawrie; Annie Leeks; Gordon McKee, The Test for Causation in Canada: But for, but.. Maybe Not, 75 Def.
Counsel J. 378 (2008)
16
Eric Colvin,Causation in Criminal Law, 1 Bond L. Rev.[i] (1989)
17
[2002] UKHL 22
3. Consecutive causes: several causes operate one after another each of which plays role to
identifiable damage. Performance Cars v Abraham18 is a good example. Here the court of appeal
determined that there was no effective damage arising from the second collision as the requirement
for a re spray already existed before the collision. But in Baker v Willoughby the House of Lords
surprisingly held that the defendant’s liability would be continuing after the second occurrence in
which the defendant got his leg amputed it was thought that the House of Lords decision was just
to ensure the justice to the plaintiff.

About the House of Lords decision in Baker v Willoughby Lord Keith and Russel19 indicated that
the second event in Baker was also a tort. That means if the second event was natural then the
House of Lords decision would be different as can be observed from the decision of Jobling v
Associated Dairies in which the court held that the defendant’s liability ceased at the point that the
further back injury developed.

18
[1962] 1 QB 33
19
[1970] AC 467
CHAPTER 4

EXCEPTIONS OF BUT FOR

There are many instances where it is unworkable, it cannot be used for test of non- causation where
as it can be used properly as test of causation.

The Negative application of test would often excuse the defendant from liability on the ground
that his act was not a cause when in fact it was, The cases are too frequent where it is perfectly clear
that the defendant was an actual cause in fact in producing the damage, which would have occurred
substantially as and when it did without his act, to make it proper to rely upon the "but for" test
applied negatively to exclude liability.

There are a few exception of the but for:

NOVUS ACTUS INTERVENIENS

The doctrine of Novus actus interveniens is a mechanism for choosing between actors who could
each be held casually responsible20. The function of the doctrine is to eliminate certain persons
from the casual picture because responsibility in the absence of an attribution to someone else.

Two general tests have been used in handling questions of casual responsibility. They are

‘Substantial cause test’ and the reasonable foreseeability test.

The substantial cause test is a retrospective in nature21. It involves looking backwards from a result
in order to determine whether, in the light of all that happened, a particular casual factor has played
a substantial role in bringing about that result.

The Reasonable foreseeability test is a prospective one. It involves adopting the position of the
person who has alleged to have caused the result and then looking forward from the conduct
towards the result.

Examples of novus actus interveins which absolves defendant of liability includes:

20
Criminal Law, Nicola Padfield, Oxford University Press, 10th edition,2016, pg. 33
21
 i. Naturally occurring unpredictable events

Naturally occurring unpredictable events means the events which are caused by act of god and
cannot be prevented22. This could be easily explained through a case where D rendering V
unconscious and leaving him in a building which then collapses in earthquake D will not be held
to have cause V’s death.

ii. Outrageously incompetent medical treatment

The Outrageously incompetent medical treatment could be explained through a case of Cheshire
(1991) In this particular case D shot V in the thigh and stomach while they were arguing in a fish
shop. V died not of the wounds, but of the tracheotomy performed while he was in hospital to help
him to breathe. The court upheld his conviction for murder eventhough negligence in the treatment
of the victim was the immediate cause of his death, the jury should not regard it as excluding the
responsibility of the accused unless the negligent treatment was so independent of his acts.

Jordon

iii. Acts of victim

Sometimes V’s own act may be said to break the chain of causation however it is more common
for the courts to hold that D must take his victim as he finds him and apply the thin skull rule
Thus even if there is something unsual about V’s physical or emotional makeup such that the
consequence is ,Much more serious than D could have foreseen. He may still be liable.

In Holland23 V refused to have his finger amputated after he had been wounded by D, Despite
a surgeon advice that this was the best form of treatment he died of lockjaw. Here D was
convicted of murder.

In another case of Blaue24, D stabbed a Jehvoh’s Witness, who refused a blood transfusion and
died. The fact that the victim refused to stop this end coming about did not break the casual
connection between the act and the death. Here he was convicted for manslaughter.

22
Criminal Law, Smith & Hogan, Oxford University Press, 12th edition,2008,pg. 79
23
(1841) 2 Mood. & R. 351
24
61 Cr App R 271
In William25s case, V was a hitch hicker, having been threatened by D’s jumped out of their car
and died of his injuries. A proper explanation was given by the court:

D was guilty if V’s attempted escape was proportionate to the treat that is to say, that it was within
the ambit of reasonableness and not so daft as to make it his own voluntary act which amounted
to a novus actus interveniens in judging whether V acted reasonably the jury should take into
account any particular characteristics of the victim and the fact that in the agony of the moment
he may act without thought and deliberation.

iv. Innocent agent

The doctrine of innocent agency can be viewed as a prescription for the exclusion of ‘but for’
connections which is still flourishing. An innocent agent is a person who is unwittingly used
by someone else to achieve an unlawful end. Let’s understand with a case26. The facts of case
are

The postman who delivers a bomb which has been sent through the mail. If the bomb explodes
and kills the recipient, the death would not have been occurred but for the delivery by the
postman (the actions of the third agent), an innocent agent is not said to cause a result. There
are few judicial authorities on point, but it is generally supposed that the law of causation
mirrors ordinary language.

25
[1992] Crim LR 198
26
Glanville Williams, Causation in the Law,1961,Cambridge L.J. 62 (1961)
DIFFERENT TESTS INTRODUCED BY COURTS WHEN BUT FOR IS UNWORKABLE

Different tests introduced by the court when ‘but for’ principle is unworkable. They are:

(a) The McGhee test: the injury occur within the area of a risk created or materially increased by
the defendant's wrongdoing27. While this test has been criticized as effectively eliminating the need
to prove causation and was apparently, but not expressly, rejected in Snell (although it was more
clearly rejected in a subsequent decision of the Supreme Court of Canada its resurrection in
Fairchild may lead to second thoughts in Canada as well28. There are, in fact, several cases since
Snell where it has either been referred to or applied, and there is little to distinguish it from the
"materialization of a clear danger" approach taken in another Supreme Court of Canada decision.

Bonnington Castings and McGhee were important developments in tort law as they signaled the
inception of the “material contribution” test. Instead of forcing claimants to prove that but for
defendants’ negligence injuries would not have occurred, claimants were now able to meet a far
less stringent causation threshold by simply showing that such negligence materially increased the
risk of damages incurred.

(b) The Amos test: is there some nexus or causal relationship between the wrongdoing and the
injury, or is the connection merely incidental or fortuitous? This test was established to deal with
statutory language involving injuries which "arise out of the use or operation of a vehicle".

(c) The "rational connection" test: was the injury rationally connected to the wrongdoing. This
is a test employed in certain constitutional law cases.

(d) The "proximity analysis" test: a case-by-case analysis employed in other constitutional cases
that measures the entire relationship between the breach and the injury

27
Jill Lawrie; Annie Leeks; Gordon McKee, The Test forCausation in Canada: But for, but.. Maybe Not, 75
Def.Counsel J. 378 (2008)
28
Alistair Price, Factual Causation after Lee, 131 S. African L.J. 491 (2014)
(e) The "substantial connection to the injury" test referred to in Snell29. In this particular case
the plaintiff underwent cataract surgery. During the surgery, after injecting a local anaesthetic the
defendant noticed a small retrobulbar bleed. Despite the bleeding, the defendant proceeded with
the operation. Following the surgery there was blood in the vitreous chamber of the eye. When the
blood cleared up after approximately nine months, it was discovered that the plaintiff’s optic nerve
had atrophied and the plaintiff had lost the vision in the right eye. One possible cause for the optic
nerve atrophy was pressure due to retobulbar haemorrhage. The expert witnesses could not state
with certainty what caused the atrophy or when it occurred. The trial judge relied on the McGhee
case30 and held the plaintiff had prima facie proved that the defendant’s actions had caused her
injury and that the defendant had failed to discharge the onus that had shifted to him. The trial
judge found the defendant liable.

29
[1990] 2 S.C.R. 311
30
[1972] 3 All E.R. 1008, W.L.R. 1
CONCLUSION

On a practical level, causation simply means that the current condition or circumstances would be
different had an act or omission not occurred. In some situations, however,
that proof is practically impossible.
In some situations, especially where there are multiple independent causes, the but for test is
unworkable — as in,it is practically impossible for the plaintiff to prove that the same injury would
not have occurred had the defendant’s wrongdoing not taken place.
Another way of putting it is that it may be practically impossible for the plaintiff to show that he
or she would have been in a better position had there been no wrongdoing. Situations in which the
but for test is unworkable are those in which causation cannot be proved at the scientific level.

The law does not require that level of proof. The issue is not whether, in those circumstances, the
“but for” test is irrelevant or is not a necessary ingredient of causation.
The issue in such situations rather involves the manner and standard of proof that will satisfy, for
legal as opposed to scientific purposes, the necessary element of causation, including its core
component as expressed by the but for test.
The but-for test is considered to be one of the weaker ones. There are often two reasons cited for
its weakness is tenuous relations between actions and overcausation. Some courts, however, have
tried to solve the problems related to but-for cause. Some courts use the "Substantial factor" test,
which states that as long as a defendant's actions were a substantial factor in the crime, then that
defendant would be found guilty.

So the question arises, should the but for test be abandoned? Fortunately, casual indeterminacy
cases very rarely arise in practice. When such cases arise the “but-for” test should be abandoned
because a wider normative inquiry is better equipped for making sure that those responsible will
be held criminally liable in proportion with their past wrongdoing.
In special circumstances, the law has recognised exceptions to the basic ‘but-for’ test and applied
a ‘material contribution’ test. Broadly speaking, the cases in which material contribution test is
applied must involve two requirements.
First, it must be impossible for the plaintiff to prove that the defendant’s intelligence caused the
plaintiff’s injury using the ‘but-for’ test. The impossibility due to factor that are outside of the
plaintiff’s control.
Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby
exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered the
form of injury. In other words, the plaintiff’s injury must fall within the ambit of risk created by
the defendant’s breach.
However, given that the ‘but-for’ test was taken from civil law, there seems to be no strong case
for not also abandoning it in criminal law when to adhere to it would allow a guilty party to avoid
justice.

It is unreasonable to argue that but-for factual causation is the only reasonable test of causation
when the failings of the test itself have necessitated the creation of the exceptions the citation
criticies. Whilst the test is largely effective in proving causation, there will always be cases where
the but-for test definitively produces an unreasonable or unfair result. Here these exceptions arise,
however, the courts are, arguably,indeed unreasonable and inconsistent in the way they find
causation.
The but for test cannot produce the correct result in every case. Where it fails to do so, exceptions
to the rule need not be uncontrollable, even if they are, at present, inconsistent with one another.
Were these exceptions to be governed by the principles of proportionality and fairness, consistency
in this area of the law could be possible. There maybe no good alternative to the current test, but
there need not be, provided that these principles are indeed supported for the exceptions in
question.