In the generality of personal injury actions, it is of course true that the claimant is required to discharge the burden of showing that the breach of which he complains caused the damage for which he claims and to do so by showing that but for br

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Law of Tort

Chapter 1: Introduction        

        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. Similarly, to one of the controversial and skeptical elements in proving 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 Fairchild 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 White 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 injuria 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’ 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’ Test 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 harm.

 

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. 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 Hospital 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. 

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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 ...

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