O ie but for the defendants conduct negligence would

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o I.e. But for the defendant’s (conduct) negligence would the plaintiff have been injured? ( Alternative wording -> is it more likely than not that plaintiff would have suffered injury even if def had not done X ?’ If no- seems to be a cause (defendant’s neg did cause injury) If neither yes or no- not proven on the balance of probabilities (D wins) If yes- not a cause. Defendant’s neg did not cause injury (ie plaintiff would have been injured anyway) o Barnett v Chelsea & Kensington Hospital Management Committee [1969]: P’s h had a cup of tea at work, felt ill and went to hospital. Dr wasn’t at the hosp because off sick as well that day. So the nurse called the dr and described the symptoms to him over the phone. The dr said to go home and rest, youre sick. He went home and 5 hrs later he was dead. Turned out his cup of tea had arsenic in it. The widow sued to doc and the hospital, his employer, saying his negligence caused his death. the dr had been neg, to stay home and try and diagnose over the phone. He should’ve come into the hospital, even though he was sick, to check on p’s husband. Issue is: Did the dr’s failure to come into the hospital and check on the patient cause this man’s death? Could the doctor have done anything if he had come in? Court held : Doctor is not liable on that ground . He had been negligent but his negligence did not cause the man’s death, because p couldn’t prove on balance of probabilities that if the doctor had behaved properly and come in for the patient, he would’ve lived . And probably most likely he would have died anyway because it was too late. Don’t know for sure, which is a problem. Court is being asked to compare what they know happened with what hypothetically would’ve happened if d had acted properly. So sometimes court shouldn’t give a definite conclusion that things would’ve definitely been different. Should say most likely. o Haber v Walker [1963]: Smith J said (299 case book): the ideas of causation with which the law is concerned, when attributing responsibility to harm suffered.. [are] of those of the plain man guided by common sense considerations. Test means a wrongful act/omission can not be held to be a cause of subs harm unless the harm would not have occurred without the act of omission having previously occurred. o Chappel v Hart (1998) : Kirby: If but for the negligent act or omission the actual damage suffered by the plaintiff would not have occurred, it will often be possible to conclude the issue of causation in the p’s favour. Similarly, where the damage would probably have happened anyway, it will often be possible to conclude that the act/omission was not the cause (Pg 1365 report). Torts Lecture Notes 19
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The ‘But for’ Test is a very good starting point, but that is all it is. It’s not the exclusive test. It is where you always start but is not the end of the matter. Its particularly good at telling us what aren’t the causes.not always very good when you get lots of things that could be causes, at telling us which one is the legal cause. More to it than just the ‘but for’ test.
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