Let’s start with the boring principles. The but-for causation test is one of the most common aspects of Canadian law that is inherited from British and US law. An example in Contract law is:
In a contract, when Party-A thinks Party-B’s negligence has breached the contract, A can bring an action against B to claim compensation for A’s damage. Now, the court will run the but-for test to ask the question if B didn’t have that negligence, would A still have the damage?
- If A wouldn’t be damaged without B’s negligence, we say the but-for test is satisfied, which means the causation can be established.
- IF A would still possibly be damaged without B’s negligence, the but-test is not satisfied, which means the causation cannot be established.
If the test result is (1), A could recover its damage from B. If the test result is (2), A cannot recover from B.
It is more interesting to see how the but-for test is applied to different lawsuits.
In the law of Tort, the arsenic poisoning case in the UK in 1968 stands out. Mr Barnett was a night shift worker when he got into an argument and was hit in the head, he then went to the ER at 4am. ER didn’t see anything wrong so he was dismissed.
At 8am Mr Barnett came back to the ER with an upset stomach and vomiting. The nurse on duty called the doctor and asked the doctor to come and take a look, but the doctor believed it was still from the hit on the head. The doctor told the nurse on the phone: let him go home and contact the family physician.
Mr Barnett died at 1pm. The autopsy report found that the actual reason for death was arsenic poisoning caused by a tea-drinking Mr Barnett had with his colleagues on the night shift. Mrs Barnett was outraged and filed a complaint against the irresponsible hospital.
The court ruled that the hospital was not responsible for Mr Barnett’s death.
This stunned decision was based on the But-for test. The ratio decidendi (reason of decision) provides that the court believed even if the doctor checked Mr Barnett at the time, with the normal examination process, Mr Barnett would die anyway given the degree of poisoning he had. So the But-for test was not satisfied and the causation could not be established.
Conversely, if Mr Barnett could survive provided the hospital admitted him in time, the test was then successful, and the hospital would be responsible for his death.
A year later, in 1969, the case of Mr McKew was also remarkable. He was the claimant who sustained an injury at work due to his employer’s breach of duty. He strained his back and hips and his leg was prone to giving way. Whilst in this state he attempted to climb down a steep concrete staircase without a handrail unaided. He got part way down and felt his leg give way so he jumped 10 steps to the bottom. He suffered a fractured right ankle and was also left with a permanent disability. The employer, as the defendant, accepted liability for the injury sustained during his employment but disputed liability for the second injuries resulting from the claimant’s action in jumping down the stairs.
The court held that the claimant’s action amounted to a novus actus interveniens (new intervening act) because his action in attempting to climb the steps unaided knowing that his leg might give way was unreasonable. The employer defendant was therefore not liable for the injuries resulting from the incident on the stairs.
One more noteworthy case of Mr. Benge who who were repairing and replacing railway tracks. Mr. Benge misread the train timetable and got the wrong time for the arrival of a train. After he realized his mistake, he sent a team member to warn the approaching train to stop. However, instead of going the 1000 yards which the team member was supposed to, he only went 500 yards. Meanwhile, the train driver was also not paying careful attention to the signals. Therefore, the train was unable to stop before it reached the work area, crashed and many people were killed. The issue in front is court is now whether Mr Benge’s negligence was superseded by the negligence of the signalman and the train driver, so as to absolve him of responsibility for their deaths. Eventually, the court found that Mr Benge was guilty of his gross negligence and the ratio decidendi was that the culpable act to cause the horrible incident needs not be the sole cause.
When it comes to criminal offences, the but-for test becomes much more dimensional:
- Mr Hayward chased his wife out of the house shouting threats at her. The wife collapsed and died. He did not physically touch her. Turns out she was suffering from a rare thyroid condition which could lead to death where physical exertion was accompanied by fright and panic. Both the defendant and his wife were unaware she had this condition. The issue the court needs to identify is if the wife’s medical condition means that the husband’s action caused the wife’s death or if the the wife’s condition broke the chain of causation. Later the court held that Mr Hayward was guilty and liable for constructive manslaughter, the significance of this case provides the principle that the accused must take his victim as he finds him.
- The female victim refused Mr Blaue’s request to have sex with him, as a result of which Mr Blaue stabbed her. The victim was admitted to hospital but due to her beliefs as a Jehovah’s Witness she refused the blood transfusion which would save her life. She subsequently died. The court needs to resolved the issue whether the victim’s refusal to accept a life-saving blood transfusion was a novus actus interveniens which absolved the defendant of responsibility for the victim’s death. Later the court of Appeal held Mr Blaue was guilty and the conviction for manslaughter was upheld, with the same ratio decidendi above.
- Mr White placed poison in his mother’s drink intending this would kill her. She drank some of the drink, but before the poison could take effect the victim died of an heart attack. The court then faced the issue whether the defendant’s actions made him guilty of murder, or whether the heart attack successfully broke the chain of causation. Subsequently the court found Mr White was only convicted of attempted murder because the poison ended up playing no role whatsoever in her death; the victim did not die as a result of the victim’s actions but due to an unrelated heart attack, which means the but-for causation test was not satisfied.
- The victim in this case was a Mark van Dongen, who was a Dutch national, living and working in the Bristol area as an engineer. He and the defendant, Ms Berlinah Wallace, had been in a relationship which had broken up. The victim had visited the defendant at her flat, at her request and had ended up staying the night. Whilst he was asleep, the defendant threw sulphuric acid on him with the words; “If I can’t have you, no one else will”. His injuries were so horrific the jury was not allowed to see photographs of him on his arrival at hospital or during his treatment. He had full thickness burns to 25% of his body, was in a coma for 4 months, lost the sight in one eye and most of the sight in the other, his lower left leg had to be amputated and he was paralyzed – at one point, only being able to move his tongue. Mark was eventually discharged to a care home, where he was found in a dreadful state by his father, who organized a private ambulance to take him to a hospital in Belgium. After developing further complications, Mark applied for euthanasia, which is legal in Belgium and his request was granted. After he died, during the court the defence lawyer argued that the actions of the Belgium doctors (third-party) who did the euthanasia have had broken the chain of causation. the court of Appeal disagreed with the defence and held the Ms Berlinah Wallace guilty. The judge emphasized the cruelty of the crime, the horrific extent of Mark van Dongen’s injuries and the complete lack of remorse Wallace demonstrated. The judge then gave Ms Berlinah Wallace a life sentence, with a minimum of 12 years to be served before she can be considered eligible for parole.
Alright, now after all these readings on but-for test, your mind must be much more clearer, or the other way around ?
