Chronologically, having traced back on the development before 1932 whereby most of the cases were decided on the ad hoc basis. It was indeed an uphill task for the 'triers' in the court even it appears to be a similar fact. Lord Atkin has planted a seed of the negligence in tort, which marked an important ink in tort law, nonetheless, still lead to criticism even it eased the latter judges.1 Similarly, to one of the controversial and skeptical elements in proving2 negligence and that is 'causation', the main issue to be discussed in this question on which test to be used that is best dressed in covering every situation, hence obiter by Lord Bingham.
It is notably that, regarding on the issue stated by Lord Bingham in Fairchild4 is doubtless to say but a 'black hole' in the proof of causation as it still remains mysterious and unsolved. Without a second of thought, it has been said that 'But for Test' is the unsurpassed test since it has established, which borrowed from R v White5 in criminal law. It is of course rather bizarre to use the criminal law principles applying in the civil trial as it is utterly contradicting to the aim of tort via the maxim of damno sine injuria6 since it would be harder to prove every single injury beyond reasonable doubt. Hence, unquestionably, a lower standard will be granted in a civil case that is, on the balance of probabilities. So do it leads to how the 'causation' element has been vague, especially with the modified test in Fairchild case.
Therefore, His Lordship Statement has raised a momentous point where in general situation, 'But For'7 Test may be used if it appears to be apparent that it is more than probable that a 'sole' cause is present. A complication, however, arises when it appears to the fact that, it is thorny to identify the sole cause as what took place in Fairchild case. It is submitted that, an imperative act has also been brought by Compensation Act 2006,which may alter the knotty situation. Conversely, whether it or other case laws have been effectively solving the doubts, uncertainty, and long-awaited questions are to be discussed below.
Chapter 2: Is Lord Bingham Cornhill at all true especially in personal injury actions? At the first glance, it is nonetheless, to some extent is true that, the more prevailing test would be 'But For' Test8 as it is said as the rudimentary test in proving causation. It is also known as 'causation in fact' which is the traditionally applied over these centuries. This orthodoxy test simply applies on the balance of probabilities whereby the likelihood is more than 51% in causing the har.
It is vital not to disregard Lord Denning's judgment Cork v Kirby Maclean Ltd, which also left a binding precedent for the similar case.10 Without any thorns, this case is quite straight forward where a man who is an epileptic, was being set to paint the roof of a factory.
Expectedly, this necessitated him exercise his work from a platform which is 23 feet above the floor. Unfortunately, Incident happened inevitably that he fell from that platform and was killed resulted from that fall. It is also noted that, there were no guards- rail or toe boards when the incident took place. In delivering the judgment, Lord Denning has placed his ratio as.: "… If the damage would not have happened but for [emphasis added] 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…"
From the fact, it is overtly that, has affirmed Lord Bingham's statement in which a personal injury claim in negligence can thereby be discharged by the claimant as 'But For Test' has invoked in the balance of probabilities. Of course, it should be pointed, in general personal injury cases. Apparently, the said test had also been applied by Barnett v Chelsea Kensington Hospita11l where it states the 'But For' Test is to be proved more than 51% of the consequence caused by the breach.
The scene of that case took place at the Hospital in which the claimant's husband who is a night watchman called in the early morning to Dr. Banerjee's hospital. He was complaining of vomiting after drinking tea. Nonetheless, he has not been examined by any doctors, but he was advised to seek for his own doctor. Later that day he was found died of arsenical poisoning. It appears even if the doctor had treated him, there is a medical evidence that the man would not have recovered. It was held that, the hospital is found not liable since the 'But For Test' failed since the sole cause of the death is not caused by the failure of treatment.12
It seemed the test may be unsympathetic to the claimant as a large chunk of burdens is positioned on the claimant, particularly, it is a Herculean chore to prove everything more than 51% for causation. Surprisingly, another novel medical negligence case happened in Chester v Afshar appears to be in favour of it notwithstanding its problems. In that situation, Miss Chester, the claimant, has suffered lower back pain for six years from 1988. The doctor, Mr. Afshar, in advising the patient, he has failed to caution the claimant of a 1 or 2% unavoidable risk in undergoing a caudal equine syndrome in surgery on her spinal column.
The respectful lordship13, laid down his ratio with a majority view reached on a ground that, even though dissented, nonetheless. It is submitted where a modest departure should be granted. It is of their ratio that, the duty of the disclosure of risk is irreducible and not to be disregard with. The purpose of the law is sided on the patient hence they have the right to choose based on the advice given.
Understandably, life never gets so painless to have all time successfully sought for one cause in the balance of probabilities. The law also should not be placed in a situation where it covers the only certain situation. Over these decades, the 'But For' test has been criticised to be unfair and illogic to common sense simply it might neglect other possible defendants.14 It is purely a mirror of showing the ugliness the But For Test have been in the case of personal injury.
It can be contended to be unfair to a single claimant for bearing all its consequences. In another word, this test is nothing but a mechanism of the common law violating the Art.6. Right to a fair trial. It is doubtless that it is a tremendously harsh test and difficult to prove to have a single test for all circumstances. However, the questions are, on the other hand, to be deeply considered on whether 'But For' Test still ideal to be remained using by the institute of justice15 in this modern platform as caught in Chester v Afshar16. In order to lubricate on the consideration, the view might become apparent to zoom in the modified test of causation