Причинний зв’язок у деліктному праві: рефлексія над тестом «якби не»
Causation in Tort Law: Review of the “But For” Test

Summary/Abstract: Causal connection between tort feasor’s behavior and damage sustained by the plaintiff constitutes an inevitable precondition for liability in tort. The concept of causation is a matter of much debate in academic literature. In contrast, courts rarely provide exhaustive reasoning on the issue of causal nexus.That is so partly because the causal connection is often considered obvious or self-evident. Undoubtably there are many cases where causation is so evident that no one will question it. However there are also some factual situations where that is not the case. No one can effectively cope with difficult cases unless having established workable principles for the easy cases in the first place. The basic tool for analyzing causation in easy cases is the “but for” test. Notwithstanding the causation itself is of ontological nature the “but for” test is of linguistic nature. In fact it constitutes a question: would B have occurred, but for A? (where A is antecedent and B is consequent). The result of the “but for” test’s application depends on several choices. First, in reality the result is always caused by numerous factors. In contrast, the “but for” test tests only one antecedent. Therefore, this one factor has to be chosen (by a judge). Secondly,having chosen some factor judge still can choose the exact wording of that factor. Thirdly, although the consequent is always the damage sustained by the plaintiff, this damage can be put in words in numerous ways (from general outline to very specific description).

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