Exceptions to the ‘but for’ test Flashcards
When is the ‘but for’ test used in factual causation?
A) To determine whether the defendant’s breach caused the claimant’s loss
B) To decide if the defendant owed a duty of care
C) To establish whether the claimant suffered pure economic loss
D) To assess whether the defendant acted in breach of duty
A) To determine whether the defendant’s breach caused the claimant’s loss
Explanation:
The ‘but for’ test asks whether the claimant’s harm would have occurred but for the defendant’s negligence. If the harm would have occurred anyway, causation is not established.
Which case established the material contribution test when multiple factors cumulatively caused harm?
A) Bonnington Castings v Wardlaw
B) Fairchild v Glenhaven Funeral Services
C) Wilsher v Essex AHA
D) McGhee v National Coal Board
B) Fairchild v Glenhaven Funeral Services
Explanation:
In Fairchild v Glenhaven (2003), the court ruled that if an employer’s negligence increased the risk of mesothelioma, liability could be imposed, even though causation could not be proved.
In which case was the material increase in risk test applied due to scientific uncertainty regarding causation?
A) Bailey v Ministry of Defence
B) Bonnington Castings v Wardlaw
C) Wilsher v Essex AHA
D) McGhee v National Coal Board
D) McGhee v National Coal Board
Explanation:
In McGhee v National Coal Board (1973), the court imposed liability because the defendant’s breach materially increased the risk of dermatitis, even though causation could not be proved.
When can the material contribution test be used?
A) When multiple causes act together (cumulatively) to cause the harm
B) When a single factor caused the harm
C) When there is no evidence linking the harm to the defendant
D) When the defendant could not have foreseen the risk of harm
A) When multiple causes act together (cumulatively) to cause the harm
Explanation:
The material contribution test applies when both tortious and non-tortious factors together caused the harm (Bonnington Castings v Wardlaw 1956).
A patient undergoes negligent surgery, then later suffers complications from an unrelated pre-existing condition. Doctors cannot determine whether the complications were due to the negligence or the pre-existing condition. What test applies?
A) Loss of chance test
B) But for test
C) Material contribution test
D) Material increase in risk test
B) But for test
Explanation:
In Bailey v Ministry of Defence (2008), the court ruled that if negligence materially contributes to an injury, even alongside natural causes, liability is imposed. However, in cases where causation cannot be established, the but for test is the starting point.
A factory worker develops a lung condition after years of exposure to industrial dust. Some of the dust exposure was due to the employer’s negligence, but some was natural in the work environment. The claimant cannot prove that the negligent dust alone caused the condition. Which test applies?
A) But for test
B) Material contribution test
C) Loss of chance test
D) Material increase in risk test
B) Material contribution test
Explanation:
In Bonnington Castings v Wardlaw (1956), the court ruled that if the defendant’s breach made a more than negligible contribution, they are liable.
A worker is exposed to asbestos while working for multiple employers. Many years later, they develop mesothelioma. Scientific evidence cannot determine which exposure caused the disease. What test applies?
A) But for test
B) Material contribution test
C) Loss of chance test
D) Material increase in risk test
D) Material increase in risk test
Explanation:
In Fairchild v Glenhaven (2003), the court ruled that if an employer’s negligence increased the risk of mesothelioma, liability could be imposed.
A child falls from a tree and breaks their leg. The hospital negligently delays treatment, and the child later develops a permanent disability. Medical evidence shows that even with immediate treatment, the child had a 75% chance of permanent disability. Could they claim for loss of chance?
A) No, because loss of chance does not apply to personal injury cases
B) Yes, because the negligence removed their 25% chance of recovery
C) No, because negligence must be the sole cause of harm
D) Yes, if the hospital admitted fault
D) Yes, if the hospital admitted fault
Explanation:
While loss of chance is generally not allowed in personal injury cases, if the hospital admitted that their negligence worsened the condition, liability might be imposed.
A financial advisor fails to inform a client about a contract clause that could have saved them money. The client claims they lost the chance to negotiate a better deal. Could they succeed in a negligence claim?
A) No, because economic loss is not recoverable in negligence
B) Yes, if they can prove a real and substantial chance of negotiating better terms
C) No, because the advisor did not guarantee success
D) Yes, but only if they can prove a 51% probability of success
B) Yes, if they can prove a real and substantial chance of negotiating better terms
Explanation:
In Allied Maples v Simmons & Simmons (1995), the loss of chance doctrine applied because there was a real and substantial chance of a better financial outcome.
A newborn is given excessive oxygen in a hospital, which could have contributed to blindness. However, four other potential causes also existed. Could the material increase in risk test apply?
A) No, because there were multiple causal agents, not just one
B) Yes, because the oxygen exposure increased the risk of blindness
C) No, because the but for test is always required
D) Yes, if the hospital was aware of the risks in advance
D) Yes, if the hospital was aware of the risks in advance
Explanation:
While the material increase in risk test only applies where one causal agent exists, if a hospital was aware of the risks and did not take action, liability could arise through other causation principles.
