MULTIPLE DEFENDANT TORTFEASORS IN “BUT FOR “TEST
A lawsuit based on torts of negligence requires factual causation of damage. The claimant must present the case in Court using a "but for test" approach to proving the defendant is liable for the damage or injury (MacKenzie & Wood, 2018). The “but for” test provides the legal concept of causation, including actual cause and proximate cause. The “but for” test principle applies where the action is a cause of injury or damage, and the harm would not have occurred without the defendant's actions. The “but for” test gets framed in a manner that states: but for the defendant's act, would the harm have occurred? If the answer remains no, the action caused the injury (Bailey, 2010; MacKenzie & Wood, 2018). However, literature studies argue that the "but for” test is limited when evidence gets presented as concurrent damage causes (Bailey, 2010; MacKenzie & Wood, 2018). This research paper argues that the “but for” test in the tort of negligence is useless when you have concurrent causations. In some situations, it is worse than useless, considering the absurd results it provides in case law.
The English law cited a decision such as Bonington Castings Ltd v Wardlaw to demonstrate how "but for" test law is rigid and unfair when involving multiple defenders. But the causation law of negligence has an exception where it can find the defender liable if material factors increase the risk of harm to the pursuer in the absence of actual cause (Bailey, 2010). The case of Bonington Castings Ltd v Wardlaw is explored to reveal different applications of the "but for" test and its limitations.
Bonington Castings Ltd v Wardlaw in the UK.
During the Bonnington Castings Ltd v Wardlaw trial, the court report stated that John Harkness was a steel dresser who contracted pneumoconiosis at the defender's workshop. The evidence presented at the Court showed that Mr. John had worked for the defender for over eight years in which he became exposed to toxic silica dust. The preliminary findings suggested three possible sources that could have contributed to the illness of the pursuer. First, the experts argued that the silica dust was ejected by four swing grinders and a pneumatic hammer. The investigations suggested that the plaintiff could have inhaled most of the silica from the pneumatic harmer since it was near his workstation (Bailey, 2010).
On the other hand, a court report revealed that the grinders fitted with a dust extraction plant were necessary according to the Factory Act 1933. During the case hearing, the pursuer sued the defender for negligence based on a breach of statutory duty concerned with failing to keep the dust extraction plant free from obstruction. The claimant also sued against violating the Factory Act 1933, which required the defender to provide adequate ventilation or respirators (Bailey, 2010). According to the defender's argument, the pursuer could not establish a factual inquiry since the silica dust probably came from the hammer, not from inadequate ventilators and ventilation. Since the plaintiff failed to show that the defender's action was liable for the disease, the case was supposed to be dismissed (Bailey, 2010).
However, Lord Ordinary had a different perspective on the matter. He held the defender accountable for the cause of the plaintiff's disease for providing inadequate ventilation and ventilators and failing to comply with regulations of maintaining dust extraction equipment. Most judges agreed with the ruling because they argued that the defender was negligent in failing to protect the pursuer from silica toxicity (Bailey, 2010). In addition, the defender was unable to extract dust from the grinders, and that decision contributed to the risk of contracting the disease. Therefore, the defender was liable for materially increasing the risk of the disease but not through actual action (Bailey, 2010).
Multiple Tortfeasor Situations
The Court in Clements stated that the "but for" test should get applied with a robust and familiar sense involving factual inquiry between the defendant and the plaintiff. Since the "but for the test is overly strict and uses a granular approach, it becomes unworkable for multiple tortfeasor situations (Oliphant, 2016; MacKenzie & Wood, 2018).
The tort case with multiple defendant tortfeasors may unfold in a fashion that the 'but for the test is applied to one defendant at a time, and each tortfeasor would deny liability for the plaintiff's injury. They would argue that if the negligence of one defendant is eliminated, the plaintiff could still suffer from the damage induced by the other defendant; hence legally, the first defendant is not liable for the injury (Oliphant, 2016; MacKenzie & Wood, 2018). In this situation, one can consider the 'but for the test unworkable.
Moreover, other scholars can refer to this situation as over-determination or circular causation. Scholars argue since defendants materially contribute to the risk, they can still defend themselves since the plaintiff cannot identify and prove a single individual who resulted in the injury. Hence, the defendants can state that they are not liable for the injury or damage, and the “but for” test becomes circular and breaks down (Oliphant, 2016; MacKenzie & Wood, 2018).
Hypothetical Examples for Multiple Complex Tortfeasors
Let's examine hypothetical scenarios that "but for test become useless when applied individually to multiple tortfeasors who collectively contribute to the plaintiff's injury. First, consider a situation where John is driving north while James is driving Eastwards, and Mike is Westwards. When John drives through an intersection, he observes a green light and drives ahead, but James and Mike red run their lights and collide with John, inflicting spinal cord injury (Fumerton & Kress, 2001; MacKenzie & Wood, 2018). The "but for" test is strictly and individually applied. James and Mike could escape liability since each defendant could argue that if the negligent action gets omitted, John could get hit by either James or Mike. Hence technically, the individual effort was unnecessary to cause the accident (Fumerton & Kress, 2001; MacKenzie & Wood, 2018).
An alternative situation would involve a chemical manufacturing company that sells products that might cause respiratory conditions due to toxic substances. Before commencing with commercial selling, the company acquires approval from the Board of Directors to initiate selling (Fumerton & Kress, 2001; MacKenzie & Wood, 2018). The company law requires a majority of the votes to decide the matter. After unanimously voting, the product is sold to the market and harms some consumers. During a court hearing of the case, an individual Board member could attempt to escape justice where the "but for" test is strictly and individually applied. Each Board member could argue that their vote was insufficient and had minimal power to influence decisions on the matter since a majority of the vote was required to make the decision valid (Fumerton & Kress, 2001; MacKenzie & Wood, 2018). Hence, an individual Board member vote was unnecessary against a majority of votes of other Board members.
Circular Causation in Real-World Example
Sacks v Ross
In 2017, a court decision got passed concerning Sack v Ross. The court matter was about medical malpractices that affected Mr. Sacks' health after being denied quality diagnosis and treatment care. According to the court report, Mr. Sacks had underlying Crohn’s disease that prompted him to seek medical attention after a colonoscopy revealed a narrowing of his bowel that could develop obstruction (Fumerton & Kress, 2001; MacKenzie & Wood, 2018). The patient visited the Hospital to repair the narrow portion of the bowel. However, the patient claimed that the health care providers delayed assessing, diagnosing, and treating his condition. Mr. Sacks went ahead and told the Court that after failing to offer standard care to him, he became septic because of an anastomotic leak that further led to kidney failure and amputation of his legs and ten fingertips (MacKenzie & Wood, 2018).
During the trial, the plaintiffs argued that the health care professionals delayed his therapy leading to an anastomotic leak that caused his injuries. The defenders responded that they did not inflict his wounds since the patient developed a rare unrecognized infection that led to his injuries. According to the jury verdict, the defendants breached their client's standard of care by not attending to him promptly and not offering adequate assessment, diagnosis, and treatment (MacKenzie & Wood, 2018). The jury prosecuted the defendants based on the "but for" test. Each health care provider denied liability for the plaintiff's injuries since the circular causation enabled the defendant to deny their negligence since the "individually but for" test did not apply to collective actions (MacKenzie & Wood, 2018). Therefore, the case of Sacks v Ross got dismissed.
Conclusion
The paper has explained that the "but for" test applies where a defendant's actions cause the plaintiff's injuries. However, there are instances where this law does not apply, particularly in multiple tortfeasors. In some cases, various tortfeasors can use circular causation through the material contribution of risk situations. In addition, if the "but for" test law is strictly and granularly applied, it becomes unjust to the plaintiff since all the defendants may escape liability for injuries inflicted on the victim. However, there is an exception in the causation involving a defender with an actual cause and proximate cause that inflicts injuries to the plaintiffs. In most instances, when the defender denies liability through lack of proof to relate the wound with the actual cause, thus the proximate cause could help to find the defender liable and responsible for the damage or injury through the concept of materially increasing the risk of harm to the pursuer.
References
Bailey, S.H., 2010. Causation in negligence: what is a material contribution? Legal Studies, 30(2), pp.167-185.
David, H., McCague, W.P. and Yaniszewski, P.F., 2005. It is proving causation where the but for the test is unworkable. Advoc. Q., 30, p.216.
Ferry, S. and Dehez, P., 2016. Overdetermined Causation Cases, Contribution, and the Shapely Value. Chi.-Kent L. Rev., 91, p.637.
Fumerton, R. and Kress, K., 2001. Causation and the law: Preemption, legal sufficiency, and causal sufficiency. Law and Contemporary Problems, 64(4), pp.83-105.
MacKenzie, B. and Wood, A., 2018. Common-Sense Causation: How a Robust and Pragmatic Application of the'But For'Test Can Solve the Circular Causation Problem in Cases of Multiple Contributing Tortfeasors. Forthcoming in Annual Review of Civil Litigation.
Oliphant, K., 2016. Causation in Cases of Evidential Uncertainty: Juridical Techniques and Fundamental Issues. Chi.-Kent L. Rev., 91, p.587.
