Ginger's bad fur day

Imagine this. A decorator drops a heavy paint pot on Ginger the cat, ruining his fur. A bad start to any cat's day, but particularly for Ginger (now Magnolia) who was tipped to win first prize in a cat show that morning.

Is the decorator responsible to Ginger's owner for his vet fees, his regrooming costs and the lost prize money? The cat, understandably, votes yes. Indeed, practically speaking, there is a causal link. Legally speaking, however, it is rather more complex.

There is in law a test for causation (mainly applicable to losses resulting from a single negligent act) known as the "but for" test. You put the question: "But for the act of negligence, would the particular loss still have occurred?" Clearly, if this test were taken to its logical conclusion, courts would become log-jammed with convoluted claims threading back as far as the liability period (the legal time bar) would allow. Common sense and public policy dictates that a sensible line is drawn by weighing the test against considerations such as the remoteness of the damage in relation to the cause and whether the cause was the dominant one.

There have been some interesting cases of late on the application of the "but for" test. In Phee Farrar Jones vs Connaught Mason (2003), PFJ employed Connaught Mason to refurbish its leased premises. This resulted in flooding to some of the floors. PFJ moved to other rented premises, claiming the extra costs from Connaught Mason, which cried foul. One of its many arguments was that PFJ leased the new premises at least partly because of expansion plans. The court dealt with that particular point by applying the "but for" test: it concluded that PFJ had sufficiently established that it would not have moved out but for the flood.

It has been suggested by some that the "but for" test was circumvented in the case of Fairchild and Others vs Glenhaven Funeral Services (May 2002). In this case, a victim of asbestosis claimed successfully against an employer, even though he could not identify which particular employer he had been working for when he developed the disease. This did not, in fact, overrule the "but for" test. Current medical thinking is that asbestosis is caused by long-term exposure to asbestos, possibly covering several employers, any of whom might be found liable. So the "but for" test remains alive and well.

Clearly if the ‘but for’ test were taken to its logical conclusion, courts would be log-jammed with claims

However, in the recent case of Chester vs Afshar the "but for" test produced a rather unexpected result. A surgeon carried out an operation to remove damaged discs in Miss Chester's back. The surgeon was not negligent in performing the operation but was negligent in failing to warn Miss Chester of the potential risk of motor and sensory impairment.

She did, indeed, suffer such impairment. Evidence established that had she been properly warned of the risks, she would very probably still have had the operation, carrying exactly the same risk, but that she would not have rushed into it so quickly. Applying the "but for" test, the court decided that had she undergone another operation on another day, she would probably not have been so unlucky. So, rather surprisingly, it found the surgeon liable.

An interesting question relating to this case was raised in the Construction Industry Law Letter. If an architect provides an estimate of the cost of a project without warning the client of the relatively low risk of adverse weather conditions, could the architect be liable for additional costs incurred if such adverse conditions arise? My guess is no; it would be contrary to the trend of earlier cases and would place an unreasonable burden on architects. Nevertheless, it is a worrying thought for the profession that the "but for" test could be moving in this direction and be applied in such a literal manner without an overriding common sense check on the outcome.