When a person suffers a personal injury, they may feel that their case can easily be proven. Often, they may feel they have a simple and straight-forward case just by retelling what happened. However, it is important to know that the defendant is not liable unless s/he causes the victim’s harm. This article will discuss the ‘but for’ test linked with the negligence element of causation.
Most personal injury cases are based on negligence. In order to win a lawsuit for negligence the plaintiff must prove the elements of negligence. There are four elements of negligence, these are:
- Breach of duty
It is easy to think that a defendant is liable just because of their conduct and the harm suffered. It is important to note that there must be actual causation and legal causation. To prove actual causation the ‘but for’ test must be passed. The ‘but for’ test is used to ask the question, “but for the existence of X, would Y have occurred?” Therefore, in terms of personal injury the question then is:
‘Would the injury have happened in any event without the actions of the defendant?’
If the answer to this question is yes, then the defendant’s actions are not the cause of the harm. Therefore, it is correct to say that the question is squarely one of fact. The plaintiff’s duty is to prove that there is a link between the defendant’s actions and the harm they suffered.
The ‘but for’ test is commonly used in tort law and criminal law. It is to determine actual causation. Actual causation is defined as a factor without which the result in question could not happen.
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