Negligence - factual causation Flashcards
Barnett v Chelsea and Kensington Hospital Management Committee [1969]
general rule - but for test
Nield J found that the doctor had been negligent in refusing to treat B, but causation had not been proved: ‘had all care been taken, still the deceased must have died’ (at 434)
The Court held for the defendant. While the defendant owed the deceased a duty of care which they breached, the man would have died in any event. Causation was therefore not established.
This Case is Authority For…
Doctors and nurses working at an accident and emergency service owe a duty to those who go there complaining of injury or illness. There is no need for the individual to have been accepted into the hospital ward before the duty is owed.
Factual causation between the breach and the injury must be established before a defendant is liable in negligence. If but for the breach, the claimant would still suffer the injury, then causation is not established. The burden of proof is on the claimant to establish causation
The claimant was the estate of a patient who had died in the defendant’s hospital. The deceased had unknowingly drank tea laced with poison. He went to Accident and Emergency complaining of severe vomiting. The attending doctor did not examine him. Instead, the doctor told him to go see his GP. The deceased died five hours later. Expert evidence indicated that even if he had been treated, the man probably would have died. The claimant sued in negligence.
Bolitho v City and Hackney Health Authority [1998] AC 232, Lord Browne-Wilkinson
counterfactual
239 ‘in cases where the breach of duty consists of an omission to do an act which ought to be done (e.g. the failure by a doctor to attend) that factual inquiry is, by definition, in the realms of hypothesis. The question is what would have happened if an event which by definition did not occur had occurred.’
= What the defendant would have done if they had not breached the duty of care
‘Dr. Horn could not escape liability by proving that she would have failed to take the course which any competent doctor would have adopted. A defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter.’
= You cannot rely as a defendant as a second possible breach you may have committed.
the facts and holding are in the breach of duty section
Robbins v London Borough of Bexley [2013] EWCA Civ 1233
Bolitho - counterfactual
Practical Points
In determining negligence, as well as analysing causation, one needs to analyse:
- Is there a duty of care?
- Has there been a breach of that duty?
- Did the breach of duty cause damage?
It is implicit in Robbins that it is not the law that a breach of duty can only arise after notification of damage has been given
Robbins serves as a stark reminder to local authorities that failure to implement a reasonable cyclical tree management programme can amount to a breach of duty
Bolitho established that the test for causation is to assess not only what the defendant should have done in order to fulfil its duty to the claimant, but what the defendant would in fact have done if it had fulfilled its duty to the claimant. The council’s duty from 1998 was to take reasonable steps to prevent damage being caused to Mrs Robbins’s property by tree roots from its poplar trees. The council’s duty was not to undertake any specific programme of works. However, the council’s breach of duty was its failure to take reasonable steps to put in place and carry out any programme of cyclical pruning from 1998 onwards to prevent damage especially as the damage was foreseeable (paragraphs 43 – 44). Following from Bolitho and based on the evidence … “the Judge was justified on the facts, and as a matter of the proper application of the rules of causation, in asking what the Council would in fact have done, had it taken reasonable steps to prevent the damage…” (paragraph 52).
The appeal was dismissed as the Court of Appeal concluded that the judge had reached the correct conclusions as to causation.
Facts:
The recent Court of Appeal decision in Josephine Robbins v London Borough of Bexley underlines the importance of considering the separate concepts of duty of care, breach of duty and causation in property damage claims. Mrs Robbins brought a claim against London Borough of Bexley for tree root subsidence damage caused to her
property in 2003 and 2006. A row of mature black poplar trees situated in Danson Park at the rear of Mrs Robbins’s property was implicated as being the cause of damage. The trial judge found that subsidence damage had been caused by the trees and the risk of damage was reasonably foreseeable to the council from as early as 1998. In fact, the council had foreseen the risk and evidence was adduced that there had been previous claims for damage caused by the same row of mature black poplars. The council did not carry out any works to the trees between 1998 and 2006. The judge concluded that if works had been carried out in this period, the trees would have received the same severe pruning that they received in 1998 and in 2006. He held that if the council had a cyclical management programme, as it should have done, the trees would have been pruned on a four-year cycle from 1998 and such pruning work would have probably prevented the damage.
Further, had works orders of 2004 and 2005 been carried out promptly, the works would have been the same as that carried out in 1998 and 2006 and the significant further damage that occurred in 2006 would have been prevented. Based on the evidence presented, the judge found the council to be in breach of duty and awarded judgment for the claimant for the 2003 and 2006 damage in the sum of £150,081.48
Bonnington Castings Ltd v Wardlaw [1956] AC 613
material contribution to harm - exception
Commentary
The material contribution test is not to be confused with the material increase in risk test in Fairchild
In the former, factual causation of part a cumulative injury is established on a balance of probabilities
In the latter, no factual causation needs to be proven in cases where there is scientific uncertainty on the causal mechanism of a disease
D was liable for negligence as the tortious dust had made a material contribution to C’s pneumoconiosis. Bonnington is a significant case as it indicates that the defendant does not have to be the sole cause of the claimant’s damage in order to be liable in negligence:
Lord Reid
Pneumoconiosis is caused by a gradual accumulation in the lungs of silica particles
The source of disease was dust from both
Thus, the question is not whether which is the more probable source of disease but whether the tortious dust materially contributed to the disease
‘Material’ means more than de minimis (non-negligible)
C developed pneumoconiosis (a form of lung disease) from inhaling silica dust at work. The defendant was in breach of a statutory duty in failing to provide an extractor fan. Had they installed an extractor fan the number of particles of silica that the claimant was exposed to would have been reduced, however, there would still be some particles present. 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. C sued D employer for negligenceThe 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. As the defendant was unable to do this they were liable. The defendant appealed contending the burden of proof rests on the claimant.
There were two sources of dust:
The non-tortious dust was from operation of a pneumatic hammer which could not be avoided; and
The tortious dust was from swing grinders due to ducts that were negligently maintained
Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 42
material contribution to harm - exception - divisible disease
[20] ‘[The claimant] will be entitled to succeed if he can prove that the defendant’s tortious conduct made a material contribution to his disability. But strictly speaking the defendant is liable only to the extent of that contribution… in my view, the court must do the best it can to achieve justice, not only to the claimant but also to the defendant, and among defendants.’
NB: Where, as in Bonnington, the other factor contributing to injury is ‘innocent’, C’s damages cannot exceed the proportion of his loss that is attributable to the guilty cause
D was only liable for loss proportionate to its contribution to the asbestosis.
Reasoning:
Causation
The material contribution to injury test rather than the material increase in risk test is applicable here as asbestosis is a divisible injury and it is scientifically proven that it is caused cumulatively by asbestos exposure
In contrast, in injuries such as lung cancer and mesothelioma it is scientifically uncertain whether such injuries are divisible or not – they might be caused by exposure to a single fibre or require many repeated exposures
Apportionment of damages
Each employer could only be held liable for a part of C’s total disability
For want of evidence suggesting any fairer basis, the court allocates responsibility between the employers on a ‘time-exposure’ basis
C developed asbestosis after working for different employers and being exposed to asbestos dust over the years
C sued one of the employers, D for negligence
Issue: was D liable for the entire loss resulting from C’s asbestosis?
Bailey v Ministry of Defence [2008] EWCA Civ 883
material contribution to harm - exception - indivisible disease
Waller LJ:
[46] ‘In a case where medical science cannot establish the probability that “but for” an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the “but for” test is modified, and the claimant will succeed.’
[46] ‘In a case where medical science cannot establish the probability that “but for” an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the “but for” test is modified, and the claimant will succeed.’
[47] ‘The instant case involved cumulative causes acting so as to create a weakness…’
D was liable for negligence
Waller LJ
D’s negligent treatment was a more than negligible cause of C’s brain injury and hence a material contribution
This is not an application of the ‘but for’ test
In a case where medical science could not establish the probability that ‘but for’ an act of negligence the injury would not have happened but could establish that the contribution of the negligent cause was more than negligible, the ‘but for’ test was modified, and the claimant would succeed
C suffering from pancreatitis, was negligently treated in hospital and in her weakened state, was unable to clear vomit from her throat, her choking caused a cardiac arrest which led her to suffer brain damage
C sued D hospital for her brain damage.
Williams v The Bermuda Hospitals Board [2016] UKPC 4
material contribution to harm - exception - indivisible diseases
[39] ‘The sequence of events may be highly relevant in considering as a matter of fact whether a later event has made a material contribution to the outcome…, or conversely whether an earlier event has been so overtaken by later events as not to have made a material contribution to the outcome. But those are evidential considerations. As a matter of principle, successive events are capable of each making a material contribution to the subsequent outcome.’ (Lord Toulson)
In this case, they reinterpreted Bailey:
They argued that contrary to the EWCA ruling in that case, the case is not an exception of the but-for test but an application of it.
The negligent treatment had left the claimant in Bailey in a weakened state.
It was the totality of the weakened condition that caused the harm, and therefore but-for causation was proven.
The negligent treatment materially contributed to the injury.
Lord Toulson’s reasoning
- The material contribution test is not confined to cases where causes are concurrent
As a matter of principle, successive events were capable of each making a material contribution to the outcome
Distinguishing Wilsher v Essex
A claim would fail if the most than can be said was that the tortious act was one of disparate causes that likely caused the injury but not it is proven on a balance of probabilities that the tortious act was a cause
In this case there was a single agent, the sepsis
C suffered from appendicitis
Negligent delay in treatment caused extra sepsis that accumulated for six hours before C’s appendix burst and the sepsis damaged C’s heart and lungs
Hence, there were two contributing causes for injury: appendicitis and delay
C sued the hospital for negligence to recover for the injury of his heart and lungs
Holmes v Poeton Holdings Ltd [2023] EWCA Civ 1377
exception - material contribution to harm - indivisible injury
[63] ‘I would… hold that we are bound in the light of Bailey to find that the Bonnington “material contribution” principle applies to cases of indivisible injury and that, where the principle applies, the claimant does not have to show that the injury would not have happened but for the tortious exposure for which the defendant is responsible.’
= it is enough to show that D’s breach in exposing you to the cause materially contributed to the disease. Two steps to this:
‘Generic Causation’: does/can TCE in principle cause Parkinson’s? Here, No.
‘Individual Causation’: did it cause Parkinson’s in this case? Here, No.
[112] ‘Although TCE has long been identified as a compound of interest, the evidence to prove generic causation is lacking whether one is applying the legal or a scientific standard of proof. To my mind the critical gap, given the absence of epidemiological evidence supporting a causative link, is the present inability to extrapolate from the rodent studies to the impact of TCE exposure in humans’
[112] ‘although it was established that exposure to TCE is a risk factor for the development of Parkinson’s disease, the judge’s finding that tortious exposure to TCE caused or materially contributed to Mr Holmes’ disease was not sustainable on the evidence and was wrong.’ (Stuart-Smith LJ)
Held: The Court of Appeal in Holmes confirmed that the Bonnington principle applies to indivisible diseases. The Court also confirmed that Parkinsons was an indivisible condition as once contracted, the severity of the condition was not affected by the level or duration of exposure. However, on review of the evidence, the Court also held that there was insufficient evidence to establish that the Defendant’s exposure of the Claimant to TCE had either caused or materially contributed to the Claimant developing Parkinson’s disease.
The Court emphasised that a risk factor is not sufficient to prove material contribution in cases of indivisible injuries. Instead, there must be an established causative link between the breach of duty and the injury itself. Simply proving tortious exposure, even though it could possibly cause the injury, was not sufficient to prove ‘but for’ or ‘material contribution’ causation. In Mr. Holmes’ case, the available evidence only established that TCE was a risk factor for Parkinson’s disease, and there was insufficient scientific evidence to establish that the exposure directly caused the disease. Given the range of other potential causes, the Court concluded that the evidence did not support a finding of material contribution.
The Court of Appeal identified two key aspects in determining whether material contribution will apply in cases of indivisible injuries:
- Generic causation:This is the question of whether the defendant’s exposure to the substance can cause or materially contribute to the development of the injury. In Holmes, the Court concluded that there was insufficient evidence to establish generic causation for Parkinson’s disease.
- Individual causation:This is the question of whether the defendant’s exposure to the substance caused or materially contributed to the individual claimant’s injury. In Holmes, the Claimant was unable to provide evidence to support individual causation
Facts: The Claimant in Holmes worked for the Defendant for 38 years and was exposed to unsafe levels of Trichloroethylene (TCE), an organic solvent, during his employment. In 2014, the Claimant was diagnosed with Parkinson’s disease, which he argued was an indivisible condition. He sued the Defendant for damages, alleging that his exposure to TCE had caused or materially contributed to his disease.
McGhee v National Coal Board [1973] 1 WLR 1
Evidentiary Gaps - Material Contribution to the Risk of Harm
Lord Reid
“There may be some logical ground for such a distinction where our knowledge of all the material factors is complete. But it has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man’s mind works in the every-day affairs of life. From a broad and practical viewpoint I can see no substantial difference between saying that what the defender did materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury.“
Lord Salmon
‘In the circumstances of the present case, the possibility of a distinction existing between (a) having materially increased the risk of contracting the disease, and (b) having materially contributed to causing the disease may no doubt be a fruitful source of interesting academic discussions between students of philosophy. Such a distinction is, however, far too unreal to be recognised by the common law.’
Held (House of Lords)
D was liable in negligence for causing C’s dermatitis as the exposure to the dirt had materially increased C’s risk of developing dermatitis.
C was full given compensation for his dermatitis.
Reasoning
Although operation of the causative effect is uncertain, medical evidence shows that cycling back with dirt and grime materially increased the risk that C would develop dermatitis as the longer the dust stayed on the skin, the greater the risk of dermatitis
D was liable in negligence for causing C’s dermatitis as the C could show on the balance of probabilities that the D negligence had materially (more than de minimus) increased the risk of harm occurring, that was sufficient to hold D liable
C developed dermatitis as a result of being employed by D to clean out some brick kilns and thus being covered by brick dust each day
This exposure to brick dust was unavoidable and was not alleged to be negligent
However, D had failed to provide him with shower facilities and C had to cycle home to wash the brick dust off
C alleged D was negligent in failing to provide him with shower facilities by prolonging his exposure
Dermatitis is not a cumulative condition, and would have been caused by a single exposure either at work or on C’s way home – under the but for test it could not be established whether being able to shower at work would have presented the disease from arising
Fairchild v Glenhaven Funeral Services [2002] UKHL 22,
Evidentiary Gaps - Material Contribution to the Risk of Harm - FC excep
Other:
Lord Bingham noted that there is no universal test of causation, and that ‘it would seem to me contrary to principle to insist on application of a rule which appeared…to yield unfair results.’ Lord Hoffman agreed that:
‘There is no scientific or philosophical touchstone for determining the relevant causal connection in any particular case. The relevance of a causal connection depends upon the purpose of the inquiry.’
The problem which the House of Lords identified with the ‘but for’ test in this kind of case is that it would essentially render the employer’s duty unenforceable: on the state of scientific knowledge causation can never be proven. This justified an exception to the usual rule of causation.
The Lords differed on how to distinguish the case of Wilsher v Essex Area Health Authority [1988] AC 1074.
- Lord Bingham argued that that case was distinct because there were several different types of ‘noxious agent’ which could have caused the injury. He thought that the ‘material contribution’ exception should only apply to cases where there is only one type of cause.
- Lord Rodger largely agreed with Lord Bingham, but thought that the material contribution rule might still apply in cases where different harmful agents if those agents ‘operated in substantially the same way’.
- Lord Hoffman disagreed, arguing that this is not a principled distinction. He distinguished Wilsher by arguing that the material contribution test only applies where a modified approach to causation is necessary to avoid a duty being effectively unenforceable. This was not the case in Wilsher.
Comments:
The decision has been criticized by some scholars, though, for departing from established rules and making the law uncertain. It could be argued that it is unfair that a defendant will have to pay substantial damages when they may not have evencontributedat all to the claimant’s injury.
Wider questions: Is the principle inFairchildrestricted to cases involving mesothelioma? InFairchilditself Lord Bingham appeared to limit the principle in this way and this view was supported by Lord Brown inSienkiewicz v Greif (UK) Ltd[2011] 2 AC 229 (at [187]), when he stated: ‘Save only for mesothelioma cases, claimants should henceforth expect little flexibility from the courts in their approach to causation.’ However, such a restriction appears illogical when one considers that the principle inFairchildwas derived fromMcGhee, where the damage suffered was dermatitis. The Court of Appeal recently held that the exception was not restricted to mesothelioma inHeneghan v Manchester Dry Docks Ltd[2016] EWCA Civ 86, where it was applied to a different type of lung cancer caused after exposure to asbestos.
The House of Lords held in favour of the claimants. Each employer had materially contributed to the risk of them contracting mesothelioma.This was enough to establish causation in this kind of case.
Held: the majority inFairchildbelieved that the House of Lords inMcGhee v NCB had established a new principle of law: that in certain circumstances a material increase in the risk of damage was sufficient to establish causation. WhileMcGheeonly involved one defendant, the principle also applied to situations involving multiple defendants.
Lord Bingham : this result was consistent with policy and principle but restricted it to cases where the claimant was suffering from mesothelioma caused by his or her employers’ negligence (at [2]).
Lord Rodger (at [170]) highlighted a number of significant features of the case where the principle would apply. He maintained that the claimant must have:
- ‘proved all that he possibly can, but the causal link could only ever be established by scientific investigation and the current state of the relevant science leaves it uncertain exactly how the injury was caused and, so, who caused it.’
- The defendant’s breach must cause a material risk of injury to the claimanthimselfand have been capable of causing the claimant’s injury.
- The principle ‘does not apply where the claimant has merely proved that his injury could have been caused by a number of different events, only one of which is the eventuation of the risk created by the defendant’s wrongful act or omission’.
- The injury must be caused ‘if not by exactly the same agency as was involved in the defendant’s wrongdoing, at least by an agency that operated in substantially the same way’.
Asbestos case – lung cancer that is an indivisible injury (you can develop it many years after exposure)
The more you are exposed, the greater the risk that you develop the cancer, especially that ppl work for more than on employer, for their entire career. They could say whose asbestos caused the disease – evidentiary gap.
Cs were exposed to asbestos dust during the course of employment with more than one employer. Cs contracted mesothelioma (a serious form of cancer) as a result of the exposure.
It was medically impossible to determine which of the employers had exposed Cs to the dust which had caused the cancer. Applying the “but for” test, the Court of Appeal held that Cs’ claims failed on the balance of probabilities.
Barker v Corus [2006] 2 AC 572
Evidentiary Gaps - Material Contribution to the Risk of Harm - FC excep
4 years later, the approach to liability in Fairchild was questioned
Reasoning:
Lord Hoffmann maintained that liability should be attributed ‘according to the relative degree of contribution to the chance of the disease being contracted’ (at [43]). Such an approach, ‘would smooth the roughness of the justice which a rule of joint and several liability creates’ (at [43]). He maintained:
> The justification for the joint and several liability rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the same harm. But when liability is exceptionally imposed because you may have caused harm, the same considerations do not apply and fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm (at [43])
- Lady Hale agreed that damages should be apportioned according to the amount of risk of damage each defendant exposed the claimant to but characterized the damage as the mesothelioma rather than the risk. As one of the defendants was insolvent, the principle inBarkermeant that the claimant was not fully compensated: the solvent employer was only liable for the extent of their risk.
- Dissent by Lord Rodger : reinterpreting the gist of the damage inFairchildas the exposure to risk, the majority was ‘not so much reinterpreting as rewriting’McGheeandFairchild(at [71]). The new analysis would ‘maximinise the inconsistencies in the law’ (at [85]) and was contrary to normal principles of apportionment.
Wider considerations:
Barkeris a landmark case in its holding that where a claimant succeeds in establishing causation under theFairchildexception, the defendant will only be liable for the extent of the risk of damage they exposed the claimant to. This apportionment rule means that claimants rather than defendants will bear the risk of any defendants going insolvent. Where that happens, claimants will not be fully compensated for their damage.
Parliament reversed this ruling with section 3 of the Compensation Act 2006 in respect to mesothelioma claims caused by exposure to asbestos only: such defendants are liable jointly and severally. This means that the practical importance ofBarkeris limited. However, it remains good law where the damage suffered by the claimant is not mesothelioma and in scenarios where the 2006 Act does not apply (seeInternational Energy Group Ltd v Zurich Insurance Plc UK[2015] UKSC 33).
Held: where the exception to the normal rules of causation inFairchild v Glenhaven Funeral Services Ltdcould be established it would be fair that defendants should be severally liable only to the extent of the share of the risk created by their breach of duty. The claimant’s damages were reduced to reflect her husband’s contribution to the damage. The claimant’s husband’s self-exposure to asbestos, though, did not prevent theFairchildprinciple from applying. According to Lord Hoffmann, asMcGheewas ‘as an approved application of theFairchildexception’ (at [13]) it follows that ‘the exception can operate even though not all the potential causes of damage were tortious’ (at [16]). Given this, ‘there is no logic in requiring that a non-tortious source of risk should have been created by someone who was also a tortfeasor’ (at [16]).
Facts: the claimant was the widow of a man who suffered from mesothelioma. Her husband had been exposed to asbestos fibres by two different employers and for a period while self-employed. One of the employers had since become insolvent and the second employer was the defendant. The long latency period and uncertainty as to the exact mechanism by which asbestos fibres cause mesothelioma meant that the claimant could not establish that the defendant’s negligence had caused or contributed to her husband’s disease under conventional principles. However, she could establish that the defendants had materially increased theriskthat he would suffer mesothelioma and so could establish causation under the exceptional rule inFairchild. The issue in the House of Lords was whether, given that causation was established on an exceptional basis, the defendant should be liable only to the extent of the risk of damage that they exposed the claimant to. In other words, whether the defendant should be liable on a several basis—which means they only have to pay compensation for their share of the damage—rather than, as is usual in cases with multiple defendants, jointly and severally liable. Where a defendant is jointly and severally liable the claimant can sue any defendant and that defendant will have to fully compensate the claimant (they can then obtain a contribution from their fellow defendants).
Sienkiewicz v Greif [2011] UKSC 10
evidentiary gaps and the FC exception - MCttRoH
Lord Phillips:
[70] ‘The Fairchild/Barker rule was adopted in order to cater for the ignorance that existed at the time of those decisions about the way in which mesothelioma is caused. Section 3 does not preclude the courts from reverting to the conventional approach of balance of probabilities in mesothelioma cases should advances in medical science in relation to this disease make such a step appropriate.’
Held (Supreme Court)
Appeal dismissed; the Fairchild exception applied
The defendants were liable as the exposure to asbestos they negligently caused led to a material increase in risk in the deceased persons contracting mesothelioma
In the case concerned two conjoined appeals, we are concerned with just the the Sienkiewiscz case
The deceased died of mesothelioma and had been exposed to asbestos while working in a steel drum factory from two possible sources:
1. general environmental exposure which was not negligent
2. negligent exposure which increased int environmental exposure by 18%
The defendant employer was held liable by the Court of Appeal under the Fairchild exception for materially increasing the risk of mesothelioma on the basis that the application of the Fairchild exception is mandated in mesothelioma cases by s. 3 Compensation Act 2006
The defendant appealed to the Supreme Court on two grounds:
the Fairchild exception should not apply in cases where there is a single negligent source of exposure and in such cases, a ‘doubles the risk’ test should apply, under which the negligent exposure must have more than doubled the risk of injury to be deemed as a cause on a balance of probabilities (as statistically the likelihood of the particular exposure being the cause is greater than the likelihood of the victim contracting the disease without the particular exposure)
in any case, the exposure to asbestos was not material
Is mesothelioma cases, is the application of the Fairchild exception mandated by s. 3 Compensation Act 2006?
If no, in single exposure cases, is the ‘doubles the risk’ test applicable?
What constitutes a material increase in risk under the Fairchild exception?
Durham v BAI (Run Off) Ltd (‘Trigger’ Litigation) [2012] UKSC 14,
FC exception and insurance
Lord Mance: [74] ‘The concept of a disease being “caused” during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the rule in Fairchild’ (See also generally at [64]–[75])
= they include policies in insurance that adapt to the C exception
In Durham, the justices unanimously held that the insurance policy terms of “sustained” and “contracted” mean the same as “caused” by exposure to asbestos.
Lord Mance, giving the lead judgment, said the courts should “avoid over-concentration on the meaning of single words and phrases viewed in isolation and look at the insurance contracts more broadly”.
Insurance policy claims for the fatal disease of mesothelioma are triggered by the date of exposure to asbestos and not the date of injury many years later, the Supreme Court has held.
The ruling, in BAI v Durham [2012] UKSC 14, also known as the “EL Insurance ‘Trigger’ Litigation”, re-instates the longstanding practice of causation, where the employee is covered by the employers’ liability insurance if the exposure that caused their disease took place during its term.
This was common industry practice until the mesothelioma case of Bolton v MMI [2006] EWCA Civ 50, [2006] All ER (D) 66 (Feb), where injury was held to occur at the point where the disease began to manifest. This shifted the insurer’s responsibility from the time of exposure to the time when the tumour developed.
Wilsher v Essex Area Health Authority [1988]
limit to the fairchild exception
Held: not liable
‘A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.’
= The Fairchild exception does not apply in cases where the sources of risk are disparate
Plaintiff Wilsher, who was an infant, was delivered prematurely in Essex Area Health Authority hospital. During the postnatal care of the child, an inexperienced junior doctor at the defendant hospital accidentally administered the baby excess oxygen. The baby afterwards suffered blindness through retrolental fibroplasia (a condition that happens to the premature infant due to some causes). The House of the Lords then found that, according to the medical evidence, five potential factors were identified as contributing to the problem. Four factors were related to the premature birth condition of the baby, while the excessive oxygen administered by the junior doctor was the fifth possible factor that could have led to blindness.
Issue : Whether administering excess oxygen by the junior doctor actually caused the blindness of the plaintiff?
Heneghan v Manchester Dry Docks Ltd [2016] EWCA Civ 86
Limits of the Fc exception
reasoning: Lord Dyson MR
The material contribution test cannot be applied
There is little distinction between the current case and McGhee v National Coal Board, where the House of Lords rejected the submission that Bonnington Castings v Wardlaw should apply in cases where it was not possible to say with any certainty which source had caused or contributed to the disease: [44]
“[T]here is a fundamental difference between making a material contribution to an injury and materially increasing the risk of an injury…it is clear that the House of Lords in Fairchild did not proceed on the basis of the fiction that a defendant who had created a material risk of mesothelioma was deemed to have caused or materially contributed to the contraction of the disease itself”:[45]
The material contribution test in Bonnington Castings v Wardlaw are reserved for cases where “where the court is satisfied on scientific evidence that the exposure for which the defendant is responsible has in fact contributed to the injury. This is readily demonstrated in the case of divisible injuries (such as silicosis and pneumoconiosis) whose severity is proportionate to the amount of exposure to the causative agent.”: [46]
All 4 factors required in Fairchild for the exception to apply is met in the present case:
all Ds concede their breach of duty;
all Ds had increased the risk that the deceased would contract the disease;
all Ds had exposed him to asbestos fibres; and
medical science is unable to determine which, if any, Ds can be attributed with exposure that actually caused the cancer: [47]
“In short, I can see no reason not to apply the Fairchild exception to the facts of the present case. There can be no objection in principle to extending it to situations which are not materially different from Fairchild.”: [48]
Held: Appeal dismissed; the judge was right to apply the Fairchild exception
As such, each D is liable for damages in proportion to their contribution to the risk of C’s father contracting lung cancer
Principles:
* Under the Fairchild exception, damages are to be apportioned by relative contribution to risk if s3 Compensation Act 2006 does not apply
The claimant (C) brought claims in negligence on behalf of the estate of his deceased father, Mr Heneghan (H), against 6 employers (Ds), alleging that exposure to asbestos by each of them had contributed to the risk of his father contracting lung cancer
Medical evidence cannot establish which (if any) of the exposures by each of the employers led to H contracting lung cancer
In Barker v Corus UK Ltd [2006] UKHL 20 it was held that damages should be apportioned among defendants by relative contribution to risk when the Fairchild exception applies, although it was subsequently reversed by section 3 of the Compensation Act
The judge ruled in favour of C and apportioned damages among Ds in proportion to their contribution to risk on the basis that Barker v Corus was applicable to cases where the Fairchild exception applied outside of mesothelioma cases covered by section 3 of the Compensation Act
C appealed for each D to be jointly and severally liable for the full sum of damages on the basis that this case was distinguishable from Barker v Corus as each D had materially contributed to C’s lung cancer, and not the risk of C contracting lung cancer
