Keith Patten outlines the difficulties associated with the “but for” test
Every law student knows that the starting point on the issue of causation in the law of negligence is the “but for” test. This asks: “but for the breach of duty, would the harm have occurred?” The courts have, from time to time, needed to depart from the “but for” test when it appeared to be just to do so (Fairchild v Glenhaven Funeral Services [2002] UKHL 22, [2002] All ER (D) 139 (Jun) being a well known example in the context of asbestos induced mesothelioma litigation) but the fact that a case does not fall within one of those exceptions does not mean that causation, even on the “but for” test, is just a straightforward question of fact. The problem with the “but for” test as an approach, is that many things can satisfy “but for” causation. This is because all the events in our lives are part of a continuous sequence and cause is, therefore, multi-factorial. So, if a pedestrian is
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