5. Negligence - causation II Flashcards
Bonnington Castings Ltd v Wardlaw [1956] AC 613
o Facts
o The claimant contracted pneumoconiosis by inhaling air, which contained minute particles of silica during the course of his employment. The defendant was in breach of statutory duty in failing to provide an extractor fan. Had they installed an extractor fan the number of particle of silica that the claimant was exposed to would have been reduced, however, there would still be some particles present.
o There were thus two possible causes: the guilty dust, which should not have been in the working environment and the innocent dust, which would have been present in any event. The trial judge held that where the duty arose by statute then it was for the defendant to show that his breach of duty (the guilty dust) did not cause the disease. The defendant was unable to do this they were liable. The defendant appealed contending the burden of proof rests on the claimant
o Held
o The burden of proof remains on the claimant. However, the claimant only had to demonstrate that the guilty dust made a material contribution to the disease. He did not have to demonstrate on the balance of probabilities that the guilty dust was the sole cause of the disease
o Steele
o Note
o The material contribution is an alternative to the ‘but for’ causation.
o In this case the defendant was liable in full to the claimant, rather than for a share in the damage suffered which would reflect the likely contribution of the exposure. This reflects the fact that the defendants never addressed the issues, and focus on resisting liability altogether – because the issues were not addressed in Bonnington, it remains an ambiguous decision
McGhee v National Coal Board 1973 1 WLR 1
o Leading case in the HL – held that a breach of duty has a material effect on the likelihood of injury then the subsequent injury will be said to have been caused by the breach
o Wilsher v Essex Area AHA – distinguished
o Fairchild v Glenhaven funeral services applied
o Facts
o James McGhee was employed to clean out brick kilns and developed dermatitis from the accumulation of coal dust in his skin. There were no shower facilities in his workplace increasing the risk that he would contract dermatitis when cycling home. Had his employer provided shower facilities, the coal dust could have been washed off before cycling, reducing the risk of contracting dermatitis.
o He sued his employer for negligence in failing to provide proper shower facilities
o The issue before the HL was whether the failure to provide the washing facilities had caused the rash
o Held
o The HL held that the risk of harm had been materially increased by the prolonged exposure to the dust.
o Lord Reid:
o ‘The medical evidence is to the effect that the fact that the man had to cycle home caked with grime and sweat added materially to the risk’
o The application of the case was significant as it meant that a claimant need not demonstrate that the defendant’s actions were the ‘but for’ cause of the injury, instead that the defendant’s actions materially increased the risk of injury, and thus damage, to the claimant
o Notes Steel in addition to judgment (bear in mind that below we have arguments and points. The main idea is that ‘a material contribution’ and ‘increasing the risk’ to contracting an illness are different ideas but carry the same liability)
o Lord Reid appears to reject Lord Kissen’s distinction (based on the evidence given by Drs ‘that an increase in risk did not necessarily mean a material contribution to the contracting of the disease. The two concepts are entirely different.’
** Fairchild v Glenhaven Funeral Services (HL) 2002 3 WLR 89, 2002 3 All ER 305
o Leading case. It concerned malignant mesothelioma, a deadly disease caused by breathing asbestos fibres.
o The HL approved the test of ‘materially increasing risk’ of harm, as a deviation in some circumstance from the ordinary ‘balance of probabilities’ test under the ‘but for’ standard.
o Facts
o Mr Fairchild had worked for a number of different employers, as a subcontractor for Leeds City Council, all of who had negligently exposed him to asbestos. Mr Fairchild child contracted pleural mesothelioma. He died, and his wife was suing the employers on his behalf for negligence. A number of claimants were in similar situations and joined in on the appeal.
o The problem was, a single asbestos fibre, inhaled at any time, can trigger mesothelioma. The risk of contracting asbestos related disease increases depending on the amount of exposure to it. However because of latency periods it takes 25 to 50 years before symptoms of disease to become evident it is impossible to know when the crucial moment was. It was impossible therefore for Mr Fairchild to point to any single employer and say ‘it was him’.
o Moreover, because the traditional test of causation is to show that ‘on the balance of probabilities’ X has caused Y harm, it was impossible to say that any single employer was the cause at all. It was impossible to say which employer caused the harm.
o Under the normal causation test, non of them would be found, on the balance of probabilities to have caused the harm
o Held
o The HL held that following McGhee v National Coal Board the appropriate test in this situation was whether the defendant had materially increased the risk of harm toward the plaintiff. The employers were joint and severally liable against the plaintiff (though amongst themselves they could sue one another for different contributions)
o Lord Bingham
o Noted that ‘The overall object of tort law is to define cases in which the law may just hold one party liable to compensate another.’ It was wrong to deny the claimants any remedy at all. Therefore the appropriate test of causation is whether the employers had materially increased the risk of harm to the claimants
o New point
o Somehow the case would undermine full compensation for working people and their families. Hence the Compensation Act 2006 was introduced specifically to reverse the ruling. However, the Act only applies to mesothelioma. What remains to be seen is whether the ‘proportionate liability’ idea will crop up in other situations.
o Note
o In introducing the Bill Baroness Ashton said that it was intended ‘to tackle perceptions that can lead to a disproportionate fear of litigation and risk averse behaviour; to find ways to discourage and resist bad claims and to improve the system for those with a valid claim for compensation.’
o Notes on Steele
o The case ensured: that material contribution to damage will be an important issue in future tort cases + allowed the claimants to succeed although the only connection they could prove was a material contribution to the risk of damage, not damage itself
o Lord Phillips argued that the aim of the HL in this case was to ensure that no party in breach escaped liability through the impossibility of causation – its aim was not, therefore, to secure compensation but liability
Barker v Corus (UK) Plc (HL) [2006] UKHL 20, (2006) 2 WLR 1027
o In this case the HL deals with industrial liability in tort in the area of causation.
o The HL reconsidered its ruling in the earlier landmark case Fairchild concerning liability of multiple tortfeasors
o The main question in this case was whether the solvent employers should pick up the proportion of the damage for which the insolvent employers were responsible so (should a tortfeasor or a claimant bear the risk of the other tortfeasor going insolvent?)
o Facts
o Similar to Fairchild v Glenhaven Funeral Services Ltd, the claimants had contracted mesothelioma after having worked for a number of different employers, all of whom had negligently exposed them to asbestos.
o Again note that it takes 25 to 50 years before symptoms of the disease become evident it was impossible to know which employer had caused the disease although all of them admittedly increased the risk of the disease occurring. Unlike Fairchild in which HL held that all the employers were jointly liable and severally liable for the damage, in this case some of the employers have become insolvent
o Held
o The majority held that the solvent employer should not be jointly and severally liable but only proportionately liable (as in 1/(the number of companies)
o Lord Hoffmann
o ‘The defendant…should not be liable for more that the damage which he caused, and since this is a case in which science can deal only in probabilities, the law should…attribute liability according to probabilities…liability should be divided according to the probability that one or other caused the harm.’
o Significance
o The outcome was a new concept of ‘proportionate liability’
o First case in the UK to apportion an indivisible injury
- Compensation Act 2006, s. 3
o S 3 reverses the common law on allocation of damages in various mesothelioma claims arising from unlawful exposure to asbestos
- In 2002, the HL had ruled that where several parties had unlawfully exposed the claimant to asbestos and risk of mesothelioma, all were liable for his injury, even though the claimant could not prove which individual party had provided the asbestos fibers that caused the disease
- However, in Barker v Corus the HL held that the parties who contributed to the risk were severally but not jointly liable. So a single defendant could only be held liable for a fraction of any damage proportional to the exposure for which they were responsible and that a claimant could only recover all their damages if they succeeded in actions against all such contributors
- S 3 reverses point 2 – the HL’s decision by making all such parties jointly and severally liable for the damage so that a claimant could recover the totality of their damage, even from a subgroup of potential defendants – this section is treated as always ‘having had effect s 16(3)’
Rothwell v Chemical & Insulating Co Ltd [2008] AC 281
o Facts
o Employees had been exposed to asbestos dust. They had subsequently developed pleural plaques (harmless proof of exposure to asbestos dust, not indicative of asbestosis
o They all feared for developing asbestosis, mental injury to varying degrees
o Issue
o Could a risk of injury from confirmed exposure be actionable in a mental injury claim?
o Held
o Claim dismissed on the ground that as pleural plaques were not actual damage, recovery for future illnesses are not actionable
o Anxiety is not recognised harm under the common law – Psychiatric injury is recognised injury under the common law
** Sienkiewicz v Greif Ltd, [2011] UKSC 10 (noted 2011 74 MLR 777)
Knowsley MBC v Willmore
o The SC handed down its judgment in the joined cases.
o The issue in these cases was whether the exception (the Fairchild exception) developed by the HL applied in so called ‘single exposure’ cases where only one defendant is shown to have exposed the victim to low levels of asbestos, and where the only other known exposure is exposure to asbestos in the general atmosphere (ONE DEFENDANT as opposed to MULTIPLE)
o Medical science cannot at present determine in multiple exposure cases which asbestos fibre (and therefore which employer) had caused the mesothelioma to develop, and this merely demonstrating that a defendant had ‘materially increased; the risk would establish liability
o While Fairchild had involved multiple employers, it left open the question of whether the principle where other possible sources of injury were similar but lawful acts of someone else or a natural occurrence
o Facts
o The claimants were administrators of the estates of deceased victims who they alleged had been wrongly exposed to asbestos at their place of work, and school respectively.
1. (Sienkiewicz v Greif Ltd,)
o Facts
o This was an action brought on behalf of the deceased’s state by her daughter
o Mrs Costello had been an office worker at factory premises of the defendant. Her duties took her all over the factory and she spent some time in areas, which were contaminated with asbestos.
o The judge had found the defendants to be in breach of duty in exposing the deceased to asbestos through the years of her employment. However, he also found that Mrs Costello had been exposed to low level of asbestos in the general atmosphere. There was a significant potential cause of mesothelioma which did not arise from the tort of an employer
o The end point was set by the SC by saying that once liability is established, it would be ‘joint and several.’
In the first claimant’s case the court at first instance concluded that the exposure to asbestos had been ‘very light’ resulting in a small increase of 18% and that in the case of a single tortious exposure to asbestos, it was necessary for the claimant to prove that the exposure had more than double the risk in order to make defendant/respondent liable.
i) The CA overruling this decision, held that a tortfeasor is liable for the development of mesothelioma where any exposure to asbestos had materially increased the risk of its development
- (Knowsley MBC v Willmore)
o Facts
o The deceased argued that she had been exposed at her secondary school operated by the defendant which she argued to have materially increased the risk of contracting the disease
The court in the second claimant’s case, in contrast had initially found the exposure to asbestos had indeed materially increased the risk of the victim contracting mesothelioma, and this was upheld by the court
ii) In the SC the respondents argued that where proceedings are directed against one party alone the Fairchild exception did not apply, and that liability could only be established if the claimant could show that the exposure had more than doubled the ‘background’ risk of the mesothelioma
Lord Phillips, delivering the judgment of the Supreme Court, held that the Fairchild exception applied to cases of mesothelioma involving a single defendant, and therefore the “doubles the risk” test for causation was therefore only potentially relevant in connection with the question of what constituted a material increase of risk. Summarizing the scientific knowledge about the causation of mesothelioma he concluded that in light of the gaps in knowledge therein, it was not possible to decide causation on the basis of epidemiological evidence and therefore the concept of doubling that risk could have no application. Furthermore, comparing the statistical relationship between exposure and the incidence of the disease with the experience of the individual victim was particularly problematic in mesothelioma cases because of the very long latency period of the disease.
The appeals were thus dismissed.
o Lord Phillips [214]
o He considers ‘that it is not possible to prove causation on the basis of epidemiological evidence alone because first it is not sufficiently reliable (para 97 to 101), and secondly there continue to be gaps in out understanding of the aetiology of mesothelioma (paras 102 to 105)
o Appeals dismissed
Law Lloyds reporter
o In Sienkiewicz v Greif Mrs Costello dies of mesothelioma. She worked many years for the defendants and during that period she was exposed to asbestos dust, although such exposure was very light.
o The evidence shows that even if Mrs Costello had not been employed by the defendants, she would have been subject to environment
o al exposure, and that her employer had increased the risk of disease, an increase of risk of 18%
o In Willmore v Knowsley Mrs Willmore dies of mesothelioma. Before her death she asserted that she had been exposed to asbestos at the secondary school at which she had been a pupil
o The SC upholding the decision of the CA held that the defendants were liable in tort:
- If exposure constituted a material increase in the risk of the disease being contracted and in a multiple exposure case (Fairchild) every defendant faced liability
- Under the Compensation Act 2006 s3 reversing Barker v Corus, every defendant was 100% liable for their loss
- ‘Section 3 did not lay down any principle of causation, but merely provided that if a defendant had exposed the claimant to asbestos and the claimant had contracted mesothelioma, that defendant was 100% liable. The question of causation remained matter for the common law, the test being whether there was a material contribution to the risk of injury
- There was no distinction to be drawn between multiple exposure cases, such as Fairchild, and single exposure cases as the present, where there was only one defendant and the competing causes were either exposure by the defendant or environmental exposure due to asbestos dust in the general atmosphere. The question is whether the defendant had materially contributed to the risk of injury
- The ‘double the risk’ test – whereby if statistical evidence showed that the defendant had doubled the risk of injury, then it followed that it was more likely than not that the defendant had caused the injury – Epidemiological evidence had to be used with great caution in the context of establishing liability
o This case also raised the issues:
- Does Fairchild apply to cases where there is only one tortious exposure?
= Yes - Lord Rodger in Sienkiewicz and also where the exposure is at a relatively low level
- Second, in such a case, can the same statistical evidence, which appears to be capable of being used to estimate the defendant’s contribution to the risk of damage, also be used to establish whether the tortious exposure did, or did not cause the damage?
** Durham v BAI (Run Off) Ltd [2012] UKSC 14,[2012] 1 WLR 867
(The Trigger Litigation)
o Facts
o The case was the collective hearing of six test cases to establish the event that triggered insurance cover under various employers’ liability (EL). Each concerned an employee who had contracted mesothelioma after being exposed to asbestos at work.
o In some cases, the employer against its own insurers brought the claim. In others the employer no longer existed and so the employee or his family pursued the claim directly against the insurer. One of the test cases was a dispute between insurers as to which of them was liable under insurance policies issued to local authorities
o The question was whether the policy that responded to the claim was the one in place at the time the employee was exposed to asbestos fibres, or the policy (if any) in place years later when the tumour developed (so at the time of exposure or when the tumour developed?)
o Held
o The judge found as a matter of construction, that the policies covered injury resulting from exposure during the policy period
o Notes
o Lord Mance concluded that liability under Fairchild was liability for causation of damage,
- McDonald (deceased) v The National Grid Plc [2014] UKSC 53
o Facts
o During the course of 5 years Mr McDonald attended a power station in the course of his employment as a lorry driver to collect fuel ash. During that time he was at the power station approximately twice a month but this fell to about twice every three months. While at the power station as a casual visitor Mr McDonald went into areas where asbestos dust was generated by lagging work. Years later Mr McDonald was diagnosed as suffering from mesothelioma and died.
o Judgment
o SC dismisses National Grid’s appeal and dismisses the cross-appeal.
o The CA found:
♣ That s47(1) did not apply in M’s case because M was not a ‘person employed’ by N, and that even if M did fall within the ambit of s47(1), there was insufficient evidence to establish that a ‘substantial quantity’ of dust had been produced by the lagging work for the purposes of s47(1). As to Reg.2(a) the court held that the Regulations applied in M’s case and that N had acted in breach of its duty. The issues were (i) the applicability of reg.2(a) to factories not engaged in the manufacture of asbestos products but in making lagging paste; (ii) whether N was in breach of its statutory duty under s47(1)
o Reasoning
o On the first appeal, the majority conclude that the 1931 Regulations apply to all factories and workshops processing asbestos, not just those dealing with asbestos in its raw, unprocessed condition
o The mixing of asbestos during lagging work at the power station fell within the meaning of paragraph (i) of the Preamble to the 1931 Regulations. LADY HALE points out that this interpretation of ‘mixing’ was compatible with Cherry Tree Machine Co v Dawson approved in this case [100]
o Lord Kerr holds that the worker in a factory or workshop where processing of asbestos took place was within the scope of the 1931 Regulations, even if not mixing asbestos himself or directly employed by the occupiers of the premises where asbestos was being mixed
o [53] ‘there was therefore no logical reason to exclude those who were liable to exposure despite not working directly with asbestos.’
o [103-104]Lady Hale concludes that liability under the 1901 Act is imposed on occupiers (rather than employers) to protect people in the premises they occupied, therefore the question was, whether a person was employed in the power station, not whether he was employed by the occupier
o Lord Clarke deems that Mr McDonald was ‘in a real sense’ working for the purposes of the power station and agrees with Lord Kerr [127]
o Lord Neuberger, Lord Kerr, Lord Clarke and Lord Reed would dismiss the cross appeal. They agree that, while the rest of the statutory criteria are met, there is no sufficient evidence to rebut the CA’s conclusion that Mr McDonald had failed to establish that a ‘substantial (considerable importance) quantity of dust’ had been given off by the mixing process as required by s 47(1) of the 1937 Act [90, 209]
o Lady Hale dissented alone.
** Zurich Insurance PLC UK Branch v
International Energy Group Limited [2015] UKSC 33,
[35 and 100], [25, 27-31], [51-55], [97].
o Legal background
o THE APPEAL CONCERNS THE SPECIAL RULES OF LIABILITY AND CAUSATION FOR CLAIMS BY VICTIMS OF MESOTHELIOMA developed in and since the HL’s decision in Fairchild v Glenhaven.
o The case decides that a victim can hold liable all employers who negligently exposed him or her to asbestos. But the HL later decided in Barker v Corus that each such employer was only liable for their own exposure. Parliament reversed Barker in the UK by the Compensation Act 2006 making each employer liable in full, with rights of contribution among themselves. In Trigger 2012 UKSC held that an employer’s liability insurer must indemnify (compensate harm or loss) the employer against exposure-based liability incurred under the principle in Fairchild.
o Only the English Common law applied in the Channel Island – so the Act of Parliament does not apply – ask what the English common law was –
o Otherwise do not apply Barker in England –
o Note
o Fairchild gives you 100% compensation + joint + several liability. Barker only gave you a portion that is why it does not apply anymore
Issues
o This case is from Guernsey, where there is no equivalent of the 2006 Act. The common laws of England and Guernsey are agreed to be identical in this area.
o The principle issues
♣ Whether the reasoning in Barker still applies in Guernsey, and whether an employer’s liability insurer covering an employer for only part of the period during which the employer exposed a victim is liable for only part of the employer’s liability to the victim
♣ If Barker does not apply and the position in Guernsey is now the same as in the UK under the 2006 Act, whether such an insurer is liable in the first instance for the whole of the employer’s liability to the victim
♣ If so, whether the insurer has rights to contribution from any other insurer of that employer and/ or from the employer in respect of any periods not covered by the insurer
Facts
o For 27 years Mr Carré was negligently and consistently exposed to asbestos dust by his employer, Guernsey Gas Light Co Ltd (GGLCL). He later contracted mesothelioma, from which he died. Before his death, he sued the company’s successor International Energy Group Limited (IEG) and recovered compensation.
o During the exposure GGLCL had two identifiable liability insurances, one with Excess Insurance Co Ltd, for two years, the other with Midland Assurance Ltd for six years. The appellant (Zurich) as successor to Midland Assurance’s liabilities maintains that it is only liable to meet 22.08% of IEG’s loss and defence costs, based on the fact that Midland only insured GGLCL for 6/27ths of the 27-year period of exposure
o The trial judge ordered Zurich to meet 22.08% of the compensation but 100% of defence costs.
o The CA ordered Zurich to pay 100% of both the compensation and defence costs
o Zurich appeals in relation to both compensation and defence costs
o Judgment
o The SC holds that the common law rule of proportionate recovery established in Barker continues to apply in Guernsey, it accordingly allows Zurich’s appeal in respect of compensation; but it dismisses the appeal in relation to defence costs [35 and 100]. The judge’s order is therefore restored
