Why The Test Is Adequate Or Not? Essay

1988 Words Dec 14th, 2016 8 Pages
In negligence cases, it must be established that the defendant’s breach of duty has caused the damage to the claimant. This causal link between the fault of the defendant and the harm of the claimant is usually provided by the ‘but for’ test of causation. However, there are several problems related to the test, rendering its sufficiency to become questionable. This essay will first explain when and how the ‘but for’ test is applied. Then, it will discuss the advantages and disadvantages of the test using relevant cases. Lastly, it will conclude by determining whether the test is adequate or not.
In tort law, three elements need to be proven so as to establish a claim in negligence. A duty of care owed to the claimant and a breach of that duty by the defendant are the first two elements of negligence claims respectively. In addition to these, on the balance of probabilities, the defendant’s action must be the fact that caused the claimant to be harmed. In other words, there needs to be a proof of factual causation. Factual causation which is sometimes referred to as causation in fact is determined by using the ‘but for’ test. The question related to the test is: ‘But for the actions of the defendant, would the claimant have injured?’ If the answer to this question is no, factual causation is established and it can be concluded that the claimant would not be harmed without the action of the defendant. Therefore, the defendant is held liable for negligence. For example,…

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