Causation "but for" test

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The Law of Tort originates from the case of Donoghue v Stevenson which dates back to 1932.  It established that  for a case to succeed, the injured person had  to prove they were owed a duty of care and that the said duty had been breached. In Nettleship v Weston,  the Court  decided that the benchmark for establishing a breach of duty,   was falling below the standard of a "reasonable man".

However, a claim for personal injury cannot succeed solely on the basis of a finding of negligence. It must be established that the negligence has caused the injury which you have suffered. The issue of causation was raised and the "but for" test was established.

A simple application of the "but for" test should be able to resolve whether "but for" the accident/negligent act would the Claimant have suffered loss or injury?   If the answer is no then the claim is likely to have good prospects . If the answer is yes then the  claim is unlikely to succeed. However, we  often face difficulties with the causation argument when there is more than one possible cause for the injury. It is then that we need to obtain medical records and expert evidence in order to establish the cause of the injury.

It must be established that the accident caused the injury or exacerbated a pre-existing injury. Deborah Blackmore, a Legal  Executive in our personal  injury team,  has written an interesting blog whereby it shows that it is not as simple as just proving fault, it must have caused the Claimant's injury and the importance of visiting your GP if you feel you have been injured or involved in an accident which was not your fault. She has quoted the case of Goodman v Faber Preest Steel (2013) which is set for re-trial after the Defendant's appealed the original decision as they did not believe the accident had cause the Claimant's injuries.

Occasionally, it is raised by Defendants that there is a  "novus actus interveniens"  which means that there has been an intervening act which has ultimately broken the chain of causation. This means that the Defendant's do not believe that it was their negligence that caused the Claimant's injuries because there has been another incident or intervening act which has broken the chain and they are subsequently not liable.

An example of this, could be where someone has had an accident, gone to A&E for medical treatment and been mis-diagnosed.  We acted for someone who was injured at work.  He fell from height and went to A&E.  X-rays were taken and he was discharged with a diagnosis of only soft tissue injuries.  It transpired that he had actually fractured his pelvis.  This was picked up 4 months later and he underwent surgery.   His employer accepted they are at fault for the original accident but suggested that the hospital's failure to diagnose the hip fracture made his injuries worse.  We therefore needed to deal with this.  Our expert Orthopaedic consultant stated that whilst the fracture was missed, it did not alter the treatment or his recovery.  It delayed it a little, but that was not sufficient to breach the chain of causation.

Alternatively, the Court may find that the injury which has been caused by the Defendant's negligence is so remote that it was not reasonably foreseeable from the incident that the Claimant would come to this type of harm.   This ultimately means that it is possible that even if a Claimant has sustained serious injuries, if they are not foreseeable and are too remote then the Defendant may not be liable.  If you are injured, it is important to ensure that there is an accurate record of the accident and the injury.   This should be recorded in your medial records or an accident report book. 

Eleanor Phipp

Paralegal

Personal Injury team 

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