Factual Causation ('but for' test) Flashcards
Q1: What is the main test used to establish factual causation in tort law?
A) The foreseeability test
B) The remoteness test
C) The ‘but for’ test
D) The proximity test
C) The ‘but for’ test
In which case was the ‘but for’ test first clearly established?
A) Caparo v Dickman
B) Donoghue v Stevenson
C) Barnett v Chelsea and Kensington Hospital
D) Wagon Mound (No 2)
C) Barnett v Chelsea and Kensington Hospital
If a claimant’s injury could have been caused by multiple independent factors, only one of which was a tortious act, what must the claimant prove?
A) That the defendant’s breach made a significant contribution
B) That the breach was the most likely cause, on the balance of probabilities
C) That the defendant acted negligently
D) That the breach increased the risk of harm
B) That the breach was the most likely cause, on the balance of probabilities
A hospital negligently failed to examine a patient who later died from an undiagnosed heart attack. Medical evidence showed that even with proper examination, no treatment would have prevented the death. What is the legal outcome?
A) The hospital is liable for negligence and must compensate the family
B) The hospital is not liable because factual causation is not satisfied
C) The hospital is liable because failing to examine the patient was negligent
D) The hospital is not liable because of policy considerations
B) The hospital is not liable because factual causation is not satisfied
(Based on Barnett v Chelsea and Kensington Hospital – the ‘but for’ test was not satisfied.)
A claimant suffers a brain injury during surgery. There were four possible causes of the injury, three of which were natural complications of the operation, and one was a failure by the surgeon to monitor oxygen levels. Each cause had a 25% probability. What is the most likely legal outcome?
A) The claim will succeed because the surgeon’s negligence was one possible cause
B) The claim will fail because the surgeon’s negligence was not proven as the most likely cause
C) The claim will succeed if the surgeon’s act contributed to the injury
D) The claim will fail because the claimant assumed the risk of surgery
B) The claim will fail because the surgeon’s negligence was not proven as the most likely cause
(Based on Wilsher v Essex AHA – the claimant must prove on the balance of probabilities (more than 50%) that the breach caused the harm.)
Which of the following is an exception to the strict application of the ‘but for’ test?
A) When the defendant acted with intent
B) When multiple causes contributed to the loss and the claimant cannot prove which was the main cause
C) When the defendant’s negligence increased the risk of harm
D) When the defendant is a public authority
C) When the defendant’s negligence increased the risk of harm
(In some cases, such as Fairchild v Glenhaven Funeral Services, courts have allowed claims where negligence materially increased the risk of harm.)
In Chester v Afshar, a doctor failed to inform a patient of a small risk of paralysis before surgery. The risk materialised. Why did the court rule in favor of the claimant?
A) The claimant proved that she would not have had the surgery if she had been warned
B) The claimant proved that she would have chosen an alternative treatment
C) The failure to warn deprived the claimant of making an informed choice
D) The doctor’s negligence directly caused the paralysis
C) The failure to warn deprived the claimant of making an informed choice
(The court modified the ‘but for’ test to protect patient autonomy in medical negligence cases.)
A factory negligently exposed workers to a chemical that causes cancer. Years later, a worker develops cancer, but medical evidence suggests that environmental factors and genetics could also have caused it. What must the claimant prove?
A) That the chemical exposure was the only possible cause
B) That there is a 51% or greater probability that the chemical exposure caused the cancer
C) That the employer should have foreseen the possibility of cancer
D) That the exposure increased the risk of developing cancer
B) That there is a 51% or greater probability that the chemical exposure caused the cancer
(The claimant must satisfy the balance of probabilities standard – a probability greater than 50%.)
A pedestrian is hit by a driver who was negligently speeding. However, the pedestrian was also looking at their phone and stepped onto the road without checking for traffic. Medical experts say that even if the driver had been going at the speed limit, the accident would still have occurred. What is the legal consequence?
A) The driver is fully liable for negligence
B) The driver is partially liable due to contributory negligence
C) The driver is not liable because the ‘but for’ test is not met
D) The driver is liable because of strict liability in road traffic cases
C) The driver is not liable because the ‘but for’ test is not met
(If the pedestrian would have been hit anyway, the defendant’s speed was not the factual cause.)
A woman undergoes surgery without being warned of a 1% risk of paralysis. She later suffers paralysis. However, she testifies that even if she had been warned, she would have gone ahead with the surgery. What is the legal consequence?
A) She will succeed in her claim under Chester v Afshar
B) She will fail because she cannot prove that a warning would have changed her decision
C) She will succeed because a failure to warn always results in liability
D) She will succeed because the risk materialised
B) She will fail because she cannot prove that a warning would have changed her decision
(Chester v Afshar applies when the claimant shows they would have chosen a different course of action if warned.)
