Supreme Court goes back to basics with case on ‘but for’ test

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By Katie King on

Will it see same fate as Ghosh test, overruled just weeks ago?

The ‘but for’ test is being considered by five Supreme Court justices right now.

The legal principle will inevitably be familiar to law students of all levels. Spanning both civil and criminal law, the but for test broadly asks: “But for the actions of the defendant (X), would the harm (Y) have occurred?” If Y’s existence depends on X, the test is satisfied and causation demonstrated. If Y would have happened regardless of X, the defendant cannot be liable.

If you can’t recall the test, you might recall the cases associated with it. The most notable tort law case on this is Barnett v Chelsea & Kensington Hospital, in which a hospital escaped a finding of negligence after sending a seriously ill man home from A&E. Though the man later died of arsenic poisoning, the courts decided he would have died even if he had been examined and admitted for treatment.

Over on the criminal law side of things we have R v White, a case about a defendant who tried to kill his mother by slipping poison in her milk. She took a few sips and died in her sleep, but he was not guilty of murder because tests showed it was not the poison but poor health that had killed her. He was liable for attempted murder, though.

The but for test spans multiple jurisdictions and practice areas, and is pretty close to law students’ hearts. It’s similar in that way to R v Ghosh, a tort law test also more than familiar to law students.

But, readers will know the Ghosh test has been given the Supreme Court treatment. Five justices recently overruled the second, subjective limb of the test for dishonesty, signalling a vital shake-up of criminal law syllabuses and textbooks.

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While we think the but for test is safe from a wholesale reform like that experienced by Ghosh two weeks ago, legal affairs lovers will be minded to know the Supreme Court is today hearing a civil case specifically concerned with the test.

Lady Hale and Lords Kerr, Sumption, Hughes and Briggs are currently hearing submissions in Tiuta v De Villiers, a professional negligence case concerning the valuation of a property in Berkshire. The surveyor, De Villiers, has been accused of massively overvaluing the property, and the issue for the justices to consider is how the but for test should be applied between an allegedly negligent valuer and lender in a re-financing situation like this one.

New justice Lord Briggs and Supreme Court president Lady Hale pictured this morning

The case had been heard at Court of Appeal level by the man now best known for leading the Grenfell Tower inquiry, Sir Martin Moore-Bick. He ruled the but for test for causation does apply in this case, and when correctly applied leads to the conclusion the valuer is liable for the whole loss flowing from the negligent valuation.

Now it’s down to the Supreme Court judges to decide if they agree. Let’s hope they don’t drop off like this man appeared to do during the hearing this morning:

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