Essay On Sufficient Connection In Law

Type of paper: Essay

Topic: Law, Tort Law, Violence, Trauma, Injury, Criminal Justice, Defendant, Liability

Pages: 10

Words: 2750

Published: 2023/02/22

Business Law – Negligence

Duty, causation and remoteness, are all devices by which the range of liability for nuisance or negligence is limited. The tests of causation i.e. the but for, the common sense, Noves actus interveniens, reasonable foreseeability and the eggshell skull rules, are founded on some aspects of the first test, the but for test. According to David, McCague, & Yaniszewski (2005), the but for test may not be abandoned because in any other test for a single or independent contributory cause incorporates, by definition at least, the concept of but for. Without this aspect, any such cause fails to be a causal factor, and the failure to consider the but for aspect in all tests of causation, renders the whole concept of causation useless. Unfortunately, however, the but for test struggles with weaknesses of its own, which have manifested in numerous cases (Mendelson, 2007; David, McCague, & Yaniszewski, 2005). Even more specifically, the but for test has fallen short in cases with multiple independent causal factors and remains sensitive to the question asked. This paper explores the actual and legal causes of tortuous liability and the respective tests, damages and remedies in Australia and other jurisdictions across the world, and makes an argument for the centrality of causality as well as the need for the replacement of the but for test. The paper argues that NESS test developed in 1985 is more robust than the but for test, and will help limit the widespread unpredictability in tort cases across the world.


It is not, and has never been adequate for a plaintiff to establish that a defendant is negligent, but that the negligence solely resulted in, or materially contributed to the plaintiff’s actionable injury (Mendelson, 2007; Barnett & Harder, 2014). Since any reliefs available to the plaintiff flow from the defendant’s wrongful conduct, apportioning blame is central to the development of tort law in the respect of this area. Therefore, upon satisfying a court of the first and second essentials, a plaintiff must still show that their injury or loss is, on a balance of probabilities, a natural and probable consequence or result of negligent conduct on the part of the defendant. According to Statsky (2011), a proximate cause, is an actual or legal cause that is legally adequate to apportion liability for the results of a plaintiff’s wrongful omission or act. The most important development of the tort law has, in the opinion of this paper, largely centred around the determination of causation through the application of the but for/material contribution rules. It is possible to overcome the unpredictability of the but for/material contribution test in some cases at least, by employing NESS.

But for test (proximate cause test)
This is a general, but an inconclusive test of causation applied in cases where there is only a single alleged cause. It provides that if it is more likely than otherwise that but for the defendant’s unreasonable omission or act, the plaintiff would not have suffered the injury/harm, then such act/omission is the proximate cause of the harm. In Cork v Kirkby Maclean Ltd and Barnett v Chelsea & Kensington Hospital, the courts held that plaintiffs have to prove by usual means that the injury would not have occurred in the absence of the defendant’s negligent act or omission. In cases of contested causation and/or multiple independent causal factors, the but for test becomes unworkable. If it is impossible to prove such causation by usual means where it may, in fact, exist, and then the but for test is used along with the substantial/material factor test (David, McCague, & Yaniszewski, 2005; Stewart, 2009).

Common-sense test

A common sense understanding of causation may become necessary where objective/scientific knowledge is yet to provide conclusive accounts of the etiology of a given injury. According to David, McCague, & Yaniszewski (2005), the but for test is not abandoned completely, because it is central to the very meaning of causation. By the common sense test, Lord Denning’s rule Cork v Kirkby Maclean Ltd is relaxed to allow for other means to satisfy it in the event of contested or multiple independent causation. In Fairchild v Glenhaven, it was determined that the plaintiff only had to prove, on a balance of probabilities that an alleged factual or hypothetical causal path materially contributed to the injury sustained, even though other causal factors existed. Similarly, in McGhee v National Coal Board, it was held that the test required a conflation of a significant contribution to an injury, or material increase in the risk of injury, coupled with the assumption that the relevant risk factors not only operate together, but also heighten the likelihood of a given causal path relative to any other causal paths (Miller, 2002; McDonald, 2007).

Noves actus interveniens

In the event of an intervening act/omission by the claimant and/or third parties that may shift liability from a defendant by halting or changing the direction of causation, this test becomes applicable. Where the intervening act/omission is committed by a third party, the courts will seek to establish whether it is foreseeable, in which case the defendant will still bear the liability for the injury to the chain of causation remains intact. In Lamb v Camden LBC, the degree of foreseeability is thought to be important, and in cases where third parties are negligent, then the defendant is effectively discharged from the initial liability or the responsibility for the injury may be apportioned. In the event the intervening act is the claimant then it must be determined if the claimant acted reasonably in the respective circumstances, in which case the liability will not shift from the defendant.


The legal test seeks to determine whether the resultant injury is a foreseeable consequence of an original risk that is attributable to the defendant. To ascertain this, the following two tests may be applied.

Test of reasonable foreseeability

The injury sustained by the claimant must be a real and not far-fetched consequence of the defendant’s act or omission in order to ascertain proximate causation. The court in Palsgraf v. Long Island RR insisted on the existence of a natural and continuous sequence of causation between an injury and the alleged causal event/factor. The greater the time, space and other distance, the more the likelihood that other factors may intervene than it is reasonable to anticipate. Negligence may only exist in the even a vigilant person can perceive the risk of the resultant injury to others within a given range of apprehension.

Eggshell skull rule as a qualification to remoteness

A tortfeasor must their victim as they find them, whatever the relevant test of remoteness, and compensate further losses due to some special vulnerability on the plaintiff’s part (McGlone, 2009; Barnett & Harder, 2014). This rule is only applicable where a defendant would still bear the liability even when the claimant did not have some susceptibility, which means that defendants are not expected to assume any special precautions when dealing with persons with some special vulnerability. The rule is applicable to physical or mental susceptibilities, religious and cultural settings among others, even though civil liability statutes in Australian jurisdictions outside Queensland and the Northern territory limit the test to mental harm. In Nadler v Urban Transit Authority of NSW, the court held that humans may not be divorced from their environment, including their social and earning reality.


Contributory negligence
This defence is available to the defendant in the event of unreasonable conduct on the claimant’s part prior or after the material fact that contribute to their injury. While in common law this comprised a complete defence for some torts allowing the defendant to escape liability completely, the Law Reform (Contributory Negligence and Tortfeasor’s Contribution) Act 1945 (UK), adopted in Australia in 1947 rendered the defence only partial. However, this defence is unavailable where the injury incurred is deliberate, and/or the defendant had the last opportunity to mitigate or void the plaintiff’s injury.

Voluntary assumption of risk

The volenti non fit injuria principle deprives the claimant any remedies if they knowingly and freely accept to be involved in behaviour or sequence of activities that result in relevant and obvious injury/harm. The NSW Civil Liability Act (2002) limits this defence where employers are in breach of statutory duty, in cases of emergency rescuers, minors, and participants in non-high spirited games, or in cases where a provider intentionally and/or recklessly disregards a claimant’s safety and health.

Express exclusion of liability

Where it is allowed by statutory law, defendants may, by way of a disclaimer clause or notice, or any other reasonable manner that is available or part of a valid agreement, exclude the common duty of care. However, in White v Blackmore, the court held that such exclusions only hold where such warnings are sufficient for the claimant to be reasonably unharmed.

Expiration of time

While courts may extend/waive the time limitation, the Limitation Act (2005) (WA) requires claimants to lodge their claims within six years from the time the injury-resulting action/omission is committed, but personal injury claims have a three years during which they may lodge their claims.


The plaintiff is entitled to compensation to restore them, to the extent possible, to an original position had the injury not occurred. Damages may be nominal, where claimants have suffered no loss, and special/general/punitive, in the event of torts resulting from the defendant’s willful, malicious or wanton conduct.

The common law ‘once-and-for-all’ rule

This rule provides that except where the claimant is unaware of the existence of a claim, or a claimant has not brought a case in reliance on a defendant’s representation and/or an agreement has been made to hold an action in abeyance, then action for a single wrong may only be brought once. Claims generated from, or by one claimable cause of action, shall be dealt in one action regardless of the remedies available under the law. Effectively, if any course of action is already litigated in full, then any further attempt by the claimant to proceed against the defendant on a similar cause and for the same remedy may be countered by the exceptio rei judicatae vel litis finitae. This is necessary to avoid difficulties due to mutually contradictory verdicts to the same case in parallel judicial proceedings (Kruger v Thompson, 2012; Statsky, 2011).

Types of loss recoverable

Pecuniary loss
Injuries that may be valued in monetary terms, including financial losses, lost income and salable property rights, Walker v. McNeill.

Non-pecuniary loss

This refers to personal bodily and mental injuries compensation for disability, pain and inconvenience among others. The sum is set as to be both reasonable and fair (Miller, 2002; Sheinman, 2003).


Causation is, as a concept, a necessary and unavoidable foundation of tortuous liability because it provides a substantial link between the plaintiff’s injury and the defendant’s conduct or failure thereof. Determining whether the injury or loss suffered by the plaintiff resulted from the defendant’s wrongful act/omission is central in the determination of tortuous liability, but achieving this end is far from straightforward. The but for test is easily the most basic and most widely applied rule in many jurisdictions. Legal interpretations of causation especially after McGhee v National Coal Board have tended to stubbornly resist moving away from the but for and material contribution test, despite fears that the twin test is overly rigid and that causation does not need to be determined based on solid scientific evidence.

But for Test Weaknesses

The but for test is on face value, simple and easy to apply, despite the multiple circumstances when it is unworkable. However, the combination of this test with the material contribution standard push the twin test into a realm that combines scientific robustness and common sense, which makes both tests into an attempt at objectivity, in situations where it is possible to reach the same conclusion with a faithful application of common sense. Lord Reid observes in McGhee v National Coal Board that causation is barely founded on philosophy or logic, but on the practical way in which reasonable people conduct themselves in ordinary affairs of life. Other scholars have argued that the legal sense of causation is not any different from its ordinary usage by the lay population, and thus a legal test that seeks to exclude this aspects is likely to be problematic.
Evidently, the but for test is fraught with weaknesses. In Fairchild v Glenhaven, for example, the court created an exception in the interest of fairness and justice by permitting normative considerations to temper the inquiry into causation, which in turn limits liability. West (2009) argues that such exceptions are not only arbitrary, but the circumstances of cases such as Fairchild v Glenhaven were not any special to merit an exception, which only goes to point to the ill-suitability of the but for test in assessing causality. There is little convincing argument to justify the near whimful suspension of the but for test, other than the possibility of the test being weak, and given the fact that other aspects of tortuous liability rely on this test in the assessment of actual and legal causes of a tort, a crisis arises. According to Fumerton & Kress (2001), exceptions to the but for test are usually flawed policy-driven decisions, which only serve to reduce clarity in the understanding of causation.
West (2008) argues that for an act/omission to cause any injury or harm to another party, such an act or omission must meet the basic characteristics of a NESS, which in turn sets it apart from a subjective interpretation. Effectively, causal factors must be both necessary and adequate conditions to result in the effect attributed to them. Necessary Element of an actual Set of factors that are Sufficient for an Effect (NESS) distinguishes among analytically, synthetically, lawfully and causally necessary and sufficient conditions of factors for an effect to occur, either knowable before or after the said effect. NESS offers a far more reliable and robust test of causality than a but for test. A condition A will be a cause for an effect B if it is a necessary element in a set of actual factors that are jointly sufficient for the occurrence of B.
For instance, to determine if defendant A’s negligence resulted in an accident an injury to a pedestrian, the court must first develop a set of conditions necessary for a pedestrian to sustain an injury, including the fact of the pedestrian being on the road and carelessness on the driver’s part. It is then possible to determine causation, if in the absence of negligence on the part of the driver, the set of conditions developed would become insufficient for the occurrence of an accident, then it is possible to ascertain causation. It is important that courts choose the items in the set of conditions that are sufficient for an effect, a court also chooses the factors that it wishes to ignore. The NESS approach is rational and can explain causation without the frequent need to resort to other rules on a case by case basis.

Weaknesses of NESS

Conditions are only required to be necessary for an effect to occur in order to be included in the set, which includes any factors including those that would even be weakly necessary for an effect to occur. For instance, if poisoning water resulted in the death of livestock, then water falls into the set of factors that are thought to be necessary for the livestock’s death. Similarly, NESS assumes that there is a causally deterministic universe, and fails to handle cases of pre-emption as expected, even though its proponents argue that the approach is capable of including cases where dome factors may pre-empt some others. For example, the failure to apply brakes is thought to preclude keeping brakes in a good state of repair, which means that it is possible to assign liability to the factor that caused an accident, as against all factors that are necessary and sufficient.

Scientific indeterminacy

In cases of scientific indeterminacy, NESS would be incapable of constructing a sufficient set of the conditions that cause an injury when the causal path of each exposure is unknown (Stiggelbout, 2010; Fumerton & Kress, 2001). In a case when a victim is exposed to a dangerous chemical by three employers, there is no way to verify independently which exposure caused the injury or guaranteeing that the set constructed is sufficient. The NESS test would be futile.


The determination of causation underlies every aspect of tortuous liability, and a task which has on multiple occasions, forced courts to depart from objective tests even when cases are logically straightforward. NESS envisages the possibility of several causal factors to an injury sustained by the plaintiff, and thus the test can detect a wide category if causation without having to set the test aside as would be the case in the but for test (Stiggelbout, 2010; Stapleton, 1988). It is, however, clear that NESS is not completely immune, at a theoretical level at least, of weaknesses. Particularly, important is the concept of causal, as against lawful sufficiency, which have resulted in criticisms that the test can be viciously circular. The difficulty in explaining indeterminacy and pre-emption convincingly point to potential weaknesses. Despite these failings, it is still possible, where applicable, to determine causation without resort to normative approaches, which in turn ensures increased objectivity and predictability than is possible with the but for/material contribution approach.


Kruger v Thompson, 10662/2009 (ZAKZPHC 62 ) (Kwazulu-Natal High Court, Pietermaritzburg Sept 26, 2012).
Barnett, K., & Harder, S. (2014). Remedies in Australian Private Law. Cambridge: Cambridge University Press.
Brill, H. W. (1999). Equitable Remedies for Common Law Torts. Arkansas Law Notes, Vol. 1999, p. 1, 1999 , Available at SSRN:
David, H., McCague, W. P., & Yaniszewski, P. F. (2005). PROVING CAUSATION WHERE THE BUT FOR TEST IS UNWORKABLE. Advocates Quarterly Vol 30 (22), 216-38.
Fumerton, R., & Kress, K. (2001). CAUSATION AND THE LAW: PREEMPTION, LAWFUL SUFFICIENCY, AND CAUSAL SUFFICIENCY. law and Contemporary Problems 64(4), 64-89.
McDonald, B. (2007). Cases on torts (4th ed.) . Annandale, NSW: The Federation Press.
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Miller, C. (2002). Approaches to Contested Causation: Fairchild v Glenhaven Funeral Services in Context. Law, Probability and Risk 1, 119-39.
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McGhee v National Coal Board, 1 WLR 1 (House of Lords 1973).

Lamb v Camden LBC, 2 All ER 408 (Court of Appeal 1981).
Fairchild v Glenhaven, 3 WLR 89 ( House of Lorda 2002).
Kruger v Thompson, 10662/2009 (ZAKZPHC 62 ) (Kwazulu-Natal High Court, Pietermaritzburg Sept 26, 2012).

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