The But for test - Essay Example

The But for test The ‘but for’ test is generally considered as the shorthand or short form of the proximate cause law. In criminal or legal jurisdiction, the proximate cause or ‘but’ for’ test tries to find the ultimate cause of a torture or an injury. There is therefore the issue of causation whereby it is explained that “the principle that causation exists only if the harm suffered by a party would not have happened in the absence of the defendant’s conduct” (Webster's New World Law Dictionary, 2010). The test therefore tries to exonerate the sufferer from the possibility of ever having to suffer the injury if the action of the defendant was absented or negated. It is therefore said that ‘but for’ the action of the defendant, “an act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred” (Farlex, 2012). At different points in time, there have been court rulings and the passing of legislative instruments that analysts have seen as coming to defeat the core criteria for applying the ‘but for’ test. To this extent, there are many who think that the originality of the ‘but for’ test have been compromised in several ways. In the following sub-sections of the paper, three instances where the very provisions of the ‘but’ for’ law have been affected will be discussed. In the midst of all these, there seem to be two major schools of thought. The first school of thought hold the believe that the minor legal stains that are made to the ‘but for’ test is eventually taking away the core value of the law that sought to protect the most vulnerable, who but for the coming of the test would have had no legal basis for presenting their cases against defendants with reasonable conditions as to why certain injuries and calamities that have suffered should be compensated for (Bennett, 2009). Such pandects believe that as far as justice is concerned, one person should not be the reason for other person suffering injuries or any physical calamities and so as long as the law can proof that but for the defendant’s action, the complainant would not have suffered, the defendant should be made to face the full damages caused. The other school of thought also hold the idea that laws are meant to be amended and changed to suit the human society. For this reason, they see nothing wrong with logical changes that arise from the need to protect the larger interest of society. With such two schools of thought all seeming to have some point to prove, the discussion and conclusion of the paper would bring one of the schools of thoughts higher to the other. How Fairchild (2003) have affected the original application of the ‘but for’ test The Fairchild (2003) emanated from the case, Fairchild v Glenhaven Funeral Services Ltd [2002]UKHL 22. In the case, the wife of Mr. Fairchild was seeking justice for her husband, who had worked for different employers, who had all, in one way or the other negligently exposed him to asbestos. Since Mr. Fairchild died as a result of suffering pleural mesothelioma, Mrs. Fairchild was actually suing the employers for negligence. As far as the ‘but for’ test was concerned, her major claim was that ‘but for’ the exposure that her husband suffered at the hands of the different employers, her husband would not have died. But there was going to be more than just this contextual assumption as the judges who heard the case would have different interpretations of the ‘but for’ test to give as far as the case that was presented was concerned. Basically, she had to proof that the sole cause of her husband’s contraction of mesothelioma was as a result of the inhalations he had from his employers are there exists several environmental factors that can expose a person to the disease causing asbestos. Second, she had to do with identifying the different probabilities at which each of the employers could be held accountable for the exposure to asbestos. The ‘but for’ test comes with a number of specific provisions in its original application. In its original application for instance, it would be noted that the ‘but for’ test always wants to establish that A has caused B and that there can be every tangible proof of this. By tangible, reference is being made to the fact that the accused must be the sole contributor (cause) to the harm. However, Fairchild came in with a case whereby the original application of ‘but’ for’ test was affected in a manner that proofing that A was caused by B had to be dependent on an empirical probability. This is because in the court ruling involving Fairchild v Glenhaven Funeral Services Ltd, the court actually established that since any single asbestos fibre in haled at any point in a person’s life could cause mesothelioma, it was not possible to ascertain the probability at which the mesothelioma disease suffered by Mr. Fairchild was caused by inhalations that took place whiles he was working with his employers. As this proof of empirical probability could not be found, the House of Lords were forced to pass their judgment based on the “materially increasing risk” of harm as against the obvious provision of the ‘but for’ test, which would have favoured a “balance of probabilities” test in using the ‘but for’ test (McCarthy, 2010). Changes to ‘but for’ test emanating from Section 3 of the Compensation Act 2006 As far as the native provisions of the ‘but for’ test is concerned, some experts are also worried that certain key provisions emanating from the Section 3 of the Compensation Act 2005 had caused changes to the originality of the test. From the Fairchild case given above, it would be noted that there was the creation of the Fairchild exception, which was “refined in Barker v Corus [2006] UKHL 20 so that each responsible party was only liable for the proportion of damages which correlated to their contribution to the risk to the claimant (Hopkins, 2011). But this was further altered with provisions from the Section 3 of the Compensation Act 2006. In the Section 3 of the Compensation Act 2006, attempts are made to intensify sanctions that accusers could face if found guilty in cases of multiple exposure to asbestos, leading to the cause of mesothelioma because the Act provides that “each “responsible person” will be liable for the whole of the damage caused to the victim and such liability will be joint and several with any other liable party” (Hopkins, 2011). In relation to the original provisions of the ‘but for’ test, it could be said that the Section 3 of the Compensation Act 2006 actually came to give the test some more judgmental powers in the sense that it came to attach stiffer sanctions to cases involving multiple exposure. This is because if say three people are found guilty of one case of exposure leading to mesothelioma, all three people will be made to face full sentence of punishment rather than distributing the judgment among the parties (Allen, 2001). This is indeed a provision that experts believe is more deterrent and more favourable to complainants under the ‘but for’ test. But most of these experts would also want to see a clearly defined undertaking that in cases where there are probabilities of both human and natural occurrence causations, as in the case of Fairchild, the human causers would be made to face the full rigors of the provisions of Section 3 of the Compensation Act (Spehar et al, 2008). In the absence of such firm undertakings, many are those who feel that the Section 3 of the Compensation Act would only be undermining the core provisions of the ‘but for’ test because “mesothelioma claims could now be considered a lost cause from the defendant’s perspective unless the claimant has in some way negligently contributed to their exposure” (Hopkins, 2011). Sienkiewicz (2011) and the Criteria for applying the ‘but for’ test In the case of Sienkiewicz v Grief (UK) Ltd, the criteria for applying the ‘but for’ test is once again brought under scrutiny. This is because there was a general consensus held by the seven-judge bench that single exposure cases of mesothelioma and multiple cases of mesothelioma face different fates of judgment in relation to the Fairchild exception. In effect, the two instances should be treated according to the different conventional rule. Subsequently, claimant in cases of single exposure had to depend largely on proving that exposure has led to materially increasing the risk of contracting mesothelioma rather than showing that the defendant’s breach of duty was accountable for doubling the risk of contracting the disease (Pearson, 2006). Because of this, the appeal that was seeking for claims for damages under the Fairchild exception was dismissed on the grounds that Fairchild exception did not apply in single exposure cases (Hopkins, 2011). So again, the criteria for applying the ‘but for’ test where claimants but have an absolute plea that the cause of action by the defendant is sorely responsible for the damage was brought to question. This is because having noted that there were environmental factors that could have also caused Sienkiewicz to have contracted the mesothelioma disease, the trail judge undertook scientific checks that came up that Grief’s tortuous exposure only accounted for 18% of the claimants disease. In this regard, there was no absolyte claim for the claimant to accuse the defendant as being the sole cause as the ‘but for’ test provides. In essence, the claimant could not have said in court that “but for Grief’s tortuous exposure, Enid Costello would not have died” because there was another factor accounting for as much as 72% of the cause of death. Discussion of Cases In the case of Fairchild, it could be said that the ‘but for’ test had a great lapse in determining cases where probability could not be accounted for on a scientific scale involving multiple exposure. This is because if Mrs. Fairchild could have any mechanism in proving that there was greater probability of her husband’s disease coming from inhalations at his former workplace, she would have won the case. Again, there is a great deal of lapse in the ‘but for’ test as exposed by the Fairchild (2003) because the original state of the test made virtually no provisions for cases where there are several people all having to stand trail as the cause of a single incident. Again, if this provision was made, there is a higher probability that she could have had a favourable hearing despite the fact that there were several employers she was battling the case against as defendants. From the instance of the Barker v Corus [2006] UKHL 20, it could be said that if Mrs. Fairchild had been able to proof that there was no other inhalation by her husband but from the employers alone, each of the employers would have been made to contribute the degree of his involvement and this would have sustained the original provision of the \but for’ test. However, the Section 3 of the Compensation Act 2006 came into the system to change almost everything. Things were actually so changed that even if she had proved that the inhalation was coming from the employers alone, each accused employer would have held the full damage of the liability caused. But again there exists serious shortfalls with the ‘but for’ test when it comes to multiple exposure because for medical cases like mesothelioma, which the Section 3 of the Compensation Act 2005 caters for, there has always been difficulty in proofing which of the accused persons is really involved and which of them is not. From the case of Sienkiewicz v Grief (UK) Ltd, one clear indication that is given of the ‘but for’ test is that it is high time the criteria for applying the test was reviewed to clearly define whether people should be held accountable for their parts played in the contraction of injuries or they should be held accountable only if they can be proven beyond reasonable doubt that they are indeed the sole cause of the injury. This is because if the former had existed, Sienkiewicz would have had a case because not only did the court say that Grief (UK) Ltd could be responsible for only 18% of the contraction of mesothelioma but that the company actually contributed to 18% of the rate of danger of death posed to Enid Costello. It is only on the ground of proportional distribution that the company was made to go free and so it was not surprising that the judge advised for an appeal to be made (Knuth, M.L. and Kelly, 2011). REFERENCES Allen, K.N. 2001. Seasonal variation of selenium in outdoor experimental stream-wetland systems. J. Environ. Qual. 20:865-868. Bennett T.D.C., Material increase in risk of mesothelioma under section 3 of the Compensation Act 2006, P.N. 2009, 25(4), 210-214 Farlex, The Free Dictionary, 2012, ‘But for’ Test Legal Definition, http://legal-dictionary.thefreedictionary.com/But+for+test [August 25, 2012] Hopkins C, 2011, Case Comment: Sienkiewicz v Greif (UK) Ltd; Knowsley MBC v Willmore [2011] UKSC 10, Web, http://freelegalweb.org/7704/2011/05/case-comment-sienkiewicz-v-greif-uk-ltd-knowsley-mbc-v-willmore-2011-uksc-10/ [August 24, 2012] Knuth, M.L. and Kelly J.R.. 2011. Gentrification rates in a Lake Superior coastal wetland . Aquat. Eco. Health Manage. 14(SI):414-421. #5423 McCarthy F., J.P.I. Law 2010, 1, C4-9 Pearson, M.S. 2006. The Great Rivers Newsletter. USEPA, Duluth, MN, Vol. 2, No. 4, November, EPA/620/N-06/004. Spehar, R.L., Leonard E.N., and DeFoe D.L.. 2008. Chronic effects of cadmium and zinc mixtures on Human Habitat (Jordanella floridae). Trans. Am. Fish. Soc. 107:354-360. #183 Webster's New World Law Dictionary, 2010, ‘But for’ Test, Wiley Publishing, Inc., Hoboken, New Jersey. Used by arrangement with John Wiley & Sons, Inc. Read More