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#causation #law #negligence #tort
The conclusion to be drawn so far from this line of authority is this: you should always begin by applying the but for test, if only to explain why it does not work or why it produces the result that it does. This was the approach adopted in Wilsher, etc. So where there are a number of potential causes of the claimant’s damage, each acting independently of the other, then the approach adopted in Wilsher should be followed. The claimant must therefore prove, on a balance of probabilities, that it was the defendant’s breach that caused the damage (applying the ‘but for’ test). However, where the various potential causes work cumulatively together to produce the damage, the court might be prepared to deviate from the standard but for test, and apply the material contribution/material increase in risk approach. This is particularly likely, as emphasised in Bailey v Ministry of Defence, where medical or other expert witnesses are unable, because of a lack scientific knowledge, to identify which of the various causes was likely to be most important.
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