4.3 Problems in proving causation
4.3.3 Multiple consecutive causes
Where causes leading to the loss or damage suffered are consecutive, or come one after the other, then ordinarily the liability will remain with the first event unless subsequent events have added to the damage. The ‘but for’ test will be applied to the original defendant.
CASE EXAMPLE
Performance Cars Ltd v Abraham [1962] 1 QB 33
The defendant negligently drove his vehicle so that it collided with a Rolls Royce car. When the Rolls Royce was also later negligently struck by another car the court held that this did not relieve the original defendant of liability for a respray that had in any case been made neces- sary by the first collision.
In this way where a pre- existing condition of the claimant has contributed to the even- tual damage it has been held that this may affect the extent of the liability of the defendant.
CASE EXAMPLE
Cutler v Vauxhall Motors [1971] 1 QB 418
The claimant suffered a grazed ankle following his employer’s negligence. The claimant already suffered a varicose condition and when an ulcer formed on the area of the graze he required an operation. While the defendant was held liable for the negligence the court identified that the liability applied only in respect of the graze, not the operation.
However, a court when it is trying to determine where liability lies in the case of con- secutive causes has inevitably at times been influenced by the desire to avoid in any way under- compensating the victim.
CASE EXAMPLE
Baker v Willoughby [1970] AC 467
The claimant was knocked down by a car and suffered a permanent stiff leg as a result. He was then forced to take work on a reduced income. At a later time he was shot in the injured leg during an armed robbery and this resulted in the leg having to be amputated. The House of Lords rejected the driver’s claim that he was then only liable for damages up to the point of the amputation. The court identified that the loss of earnings was a permanent state of affairs and had resulted from the original injury. The armed robbery and amputation of the leg had not altered this fact even though the eventual damage was different and worse.
Lord Reid explained why in his judgment:
JUDGMENT
‘A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg; it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned if there had been no acci- dent. In this case the second injury did not diminish any of these. So why should it be regarded as having obliterated or superseded them?’
89
4.3 PROBLEMS IN PROVING CAUSATION
Nevertheless, the picture is even less straightforward because the courts have also at times been keen to ensure that the victim is not over- compensated at the expense of the defendant. Again the principle is that the defendant should only be liable for the extent of the damage actually caused by him.
CASE EXAMPLE
Jobling v Associated Dairies [1982] AC 794
In 1973, and as a result of his employer’s negligence, the claimant slipped on the floor of a refrigerator in his employer’s butcher’s shop and injured his back losing 50 per cent of his earning capacity as a result. Then in 1976 he later developed spondylotic myelopathy, a crip- pling back disorder which was in fact unrelated to the fall. The court held that the defendant employer was liable for damages only up to the condition developing in 1976, since the con- dition, and therefore any further loss of earnings, would have occurred anyway despite the original negligence. The court, while not overruling Baker v Willoughby, was nevertheless very critical of the case.
The two cases taken together demonstrate the important relationship between causation where there are multiple causes and the principles on which damages should be awarded.
J Where a claimant suffers damage from two separate consecutive causes the second tortfeasor should only be liable for any additional damage caused over that suffered as a result of the first tort.
J Where a claimant suffers from a condition that is unconnected with a tort that has also caused him to suffer injury or damage of a similar type then the damages imposed on the tortfeasor must be reduced to take into account the effect of the condition.
Interestingly the points that can be taken from the two cases are not necessarily mutu- ally exclusive.
CASE EXAMPLE
Murrell v Healey [2001] 4 All ER 345
The claimant had been injured in two car accidents six months apart, both caused by the neg- ligence of separate defendants. He was paid a settlement in respect of the first claim during which he alleged that it was possible he would be unable to work again. In the second claim, and prior to the actual settlement for the first, he claimed that he did in fact expect to return to work in two months but that the second incident had damaged his knees and hips and that would prevent him from returning to work. This fact was disputed by other evidence in the case of either claim. The trial judge in the second claim held that damages should be reduced by the amount that the settlement from the first covered the same damage. He also held that no post trial loss of earnings should be allowed since the injuries to the knees and hips were not the cause of the second accident. The Court of Appeal held that the judge should have considered any additional damage caused by the second accident. In this way, if the claimant could have done light work after the first accident but that this was prevented by the second then damages should have been based on that. As the claimant had in effect removed this possibility by his evidence in the first claim, no further damages were awarded.
90
NEGLIGENCE: CAUSATION
The fact that the courts are prepared to consider the impact that future foreseeable tor- tious acts may have on termination of the claimant’s employment is yet another source of complication to establishing cause.
CASE EXAMPLE
Heil v Rankin [2000] 2 WLR 1173
Here a police officer who suffered post- traumatic stress disorder following a car crash was dis- charged from the police force. The court held that it was a foreseeable consequence of such employment that he would at some point suffer another event that might cause his retirement from the force and that they were entitled to take this into account when assessing damages.
The House of Lords has recently accepted that in certain circumstances where there are a number of defendants all contributing to the same basic injury, then a modified approach to causation has to be taken.
CASE EXAMPLE
Fairchild v Glenhaven Funeral Services Ltd and others [2003] 1 AC 32
This is a major case involving three joined appeals. They all concerned employees who had contracted mesothelioma as a result of prolonged exposure to asbestos dust with a number of different employers. Because of the difficulty of identifying during which employment the disease was actually contracted the Court of Appeal in fact rejected the claims. The House of Lords accepted the expert evidence that it is scientifically uncertain whether inhal- ing a single fibre or inhalation of many fibres causes the disease, so it is impossible to say accurately which employer caused the disease. However, the House of Lords held that, because it is evident that the greater the exposure to the dust the greater are the chances of the disease occurring, then each employer has a duty to take reasonable care to prevent employees from inhaling the dust. Besides this the House felt that any other cause of devel- oping the diseases could be ignored in the case. On the basis that the claimants suffered the very injuries that the defendants were supposed to guard against, the House of Lords was prepared to impose liability on all employers. The House chose to apply the ‘material risk’
test from McGhee. In doing so the House held that because all of the defendants had con- tributed to a risk of mesothelioma, then no distinction should be drawn between the making of a material risk of causing the disease and a course of action that would materially increase the risk of the disease. Because the employers in the case never argued that they should only be liable for a proportion of the damages then each employer should be liable to com- pensate its employee in full, even though the employee may have inhaled more asbestos fibres while working for another employee.
At first sight it is quite difficult to see the precise differences between the three very significant cases of Wilsher, McGhee v National Coal Board, and Fairchild v Glenhaven Funeral Services Ltd and others itself, all of which still stand as leading authorities. A number of points can be made:
J The judges in the House of Lords in Fairchild accepted that the sufferers of diseases such as mesothelioma, while inevitably deserving of compensation, are unable to satisfy the normal tests for causation because they will invariably be unable to point to a single party who is responsible.
91
4.3 PROBLEMS IN PROVING CAUSATION
J The Court was prepared to accept the possibility of a claim for three connected reasons:
J because claimants in such actions were unable to satisfy the normal tests for cau- sation only because of the current state of medical knowledge on the disease, although there could be no doubt that exposure to the asbestos fibres in whatever volume was at the root of the disease;
J as a result of this it was fairer to give the defendants the burden of proving that their negligence could not be the actual cause rather than make the claimants prove the precise cause;
J and if the House did not take this approach then it would be almost impossible for such claimants to ever make successful claims for the disease in which case the employer’s duty of care would be made meaningless as they could almost never be made liable.
J The majority of the judges were therefore prepared to accept an exceptional principle that where there was proof that a defendant’s negligence materially increased the risk of a claimant suffering from a particular disease then this would be sufficient basis for a claim against that defendant. This was said to be based on the principle in McGhee.
J The Court was not prepared to extend the principle in McGhee to factual circum- stances such as those in Wilsher where the problem for causation was in fact that there was a number of very different potential causes of the injury other than the defendant’s negligence, and evidence would be needed to show that the negligence was the actual cause.
As Lord Bingham stated:
JUDGMENT
‘It is one thing to treat an increase in risk as equivalent to the making of a material contribution where a single noxious agent is involved, but quite another where any one of a number of noxious agents may equally probably have caused the damage.’
J The House of Lords appears to have engaged in a policy decision in order to ensure that there is compensation for asbestos related diseases contracted in the course of employment.
QUOTATION
‘[J]urisdictions worldwide have grappled with concerns regarding an effective formulation for determining causation, and, as far as authorities selected by Lord Bingham illustrate, they have concluded that effectively throwing one’s hands into the air and retreating behind the conven- ient barrier of scientific uncertainty to deny a single remedy when there are multiple possible causes cannot be an effective or just solution as far as the injured third party is concerned.’
J Lowther, ‘Fairchild clarifying rules on causation’ (2002) 14 ELM 4
J Nevertheless, while the Law Lords have claimed to have created an exceptional prin- ciple the extent of its application is not really clear and may depend on arbitrary considerations.
92
NEGLIGENCE: CAUSATION Wilsher v Essex AHA [1986]McGhee v National Coal Board [1973]Fairchild v Glenhaven Funeral Services and Others [2001]Hotson v East Berkshire AHA [1987] The damage suffered by the claimant
The baby suffered blindness through retrolental fibroplasia.
The employee contracted dermatitis, a painful skin disease.
Various employees contracted mesothelioma, a cancer affecting the lungs caused by exposure to asbestos fibres.
The boy suffered avuncular necrosis, a permanent deformity of the hip. The breach of duty by the defendantA junior doctor employed by the defendant health authority administered excess oxygen after a difficult birth.
The employer failed to provide adequate washing facilities in the workplace so the employee could not wash till he got home.
All of the employers had exposed the claimants to asbestos fibres, although some were no longer in business.
The doctor employed by the health authority failed to diagnose the greenstick fracture at the appropriate time. Liability for harmNo liabilityLiabilityLiabilityNo liability The reason for the decisionScientific evidence showed that there were six possible causes of the condition suffered by the baby – so on a balance of probabilities it could not be proved that the doctor’s breach of duty was the factual cause of the harm.
Even though it could not be shown that the employee would not have contracted the disease but for the employer’s breach of basic health and safety duties, the employer had materially increased the risk of the employee catching the disease, and it was for the employer to disprove causation.
Although it is currently scientifically impossible to identify which particular asbestos fibre caused the disease or even whether it was more than one fibre, exposing the employee to asbestos by any of the employers was material contribution to the risk of harm so any could be liable.
Scientific evidence showed that there was a 75% chance that the boy would have suffered the deformity as a result of his injury even if the fracture had been immediately diagnosed – on a balance of probabilities it could not be proved that the doctor’s breach of duty was the factual cause of the deformity. ‘But for’ test appliedYesNoNoYes Table 4.1The relationship between key cases on multiple consecutive causes
93
4.3 PROBLEMS IN PROVING CAUSATION
QUOTATION
‘The dense and closely argued judgments in Fairchild will keep legal scholars engaged for some time. Their Lordships . . . have tried to limit the scope. Lord Bingham’s judgment, for instance, relates purely to mesothelioma claims. However, it is hard to see how this principle could not apply to all “indivisible” diseases . . . Can we expect argument that the balance weighs less in favour of the defendant when the disease is less ferocious than mesotheli- oma? That would be a difficult argument to run, given that McGhee itself related to a claim for dermatitis . . . [what] is clear [is] that insurers cannot resist claims on the basis that the claimant cannot identify who was responsible for allowing exposure to the guilty fibre or fibres.’
A Morgan, ‘Inference, principle and the proof of causation’ (2002) 152 NLJ 1060
J Establishing liability in a case may depend on how broadly or how narrowly the par- ticular duty is expressed.
The area has subsequently been the cause of even more argument and even more confusion.
CASE EXAMPLE
Barker v Corus (UK) (formerly Saint Gobain Pipelines plc); Murray v British Shipbuilders (Hydromatics) Ltd; Patterson v Smiths Dock Ltd and Others [2006]
UKHL 20; [2006] All ER (D) 23
This involved three appeals concerning questions left unanswered in Fairchild. Barker had died as a result of mesothelioma. He had been exposed to asbestos fibres during three dif- ferent periods, once in the employment of the defendant, once during different employ- ment and once during a period of self- employment. The defendant argued that causation could not be proved since the disease could have been contracted solely during the period of self- employment, and alternatively that, although mesothelioma was an indivisible injury that damages should be apportioned between the different possible causes so that the defendant should not be bound to pay full damages. The trial judge allowed a claim under Fairchild subject to a 20 per cent reduction for contributory negligence for a failure by Barker to protect himself during his self- employment. The Court of Appeal also applied Fairchild, accepted that the defendant was jointly and severally liable and rejected the pos- sibility of apportionment. The House of Lords held that in such circumstances a defendant could only be liable for the share of damages equivalent to the share of the risk of contract- ing mesothelioma created by his breach of duty, and therefore apportioned damages accordingly.
Lady Hale commenting on the potential injustice caused by the relaxation of standard rules of causation in Fairchild stated:
JUDGMENT
‘for the first time in our legal history, persons are made liable for damage even though they may not have caused it at all, simply because they have materially contributed to the risk’.
94
NEGLIGENCE: CAUSATION
Lord Hoffmann explaining the position taken by the court stated:
JUDGMENT
‘since this is a case in which science can only deal with probabilities the law should accept that position and attribute liability according to probability’.
The decision was praised in certain quarters:
QUOTATION
‘The pragmatic decision . . . reflects a desire not only to ensure that the traditional causation tests remain the cornerstones for Tort based compensation claims but to redress the inequities thrown up by . . . Fairchild.’
J McManus, ‘Playing it fair’ (2006)156 NLJ 871
However, the decision was regretted by the Prime Minister and in effect, in the case of mesothelioma claims only, was reversed by a hastily included provision in section 3 of the Compensation Act 2006. Undoubtedly the law is left in a state of some uncertainty.
As Alison McAdams suggests:
QUOTATION
‘it is difficult for any party to be confident how this area of law will develop, since the rationale being adopted seems to be one of proceeding by way of compromise’ and ‘It is also uncertain whether the “single agent” rule will be interpreted narrowly or widely in the future.’
The effect of section 3 on the Fairchild exception to the normal rules on causation has subsequently been considered by the Supreme Court.
CASE EXAMPLE
Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10
The claimant was the administratrix of the deceased’s estate. The deceased had died from mesothelioma from exposure to asbestos fibres. She had worked for 18 years in premises in which asbestos was used and which the trial judge held it had negligently exposed her to. She was also exposed to higher than normal levels of asbestos dust in the town in which she lived, Ellesmere Port. Since the risk of contracting the disease from exposure in the town was of 24 people per million and her combined risk with her exposure at work rose to 28.39 cases per million, the trial judge also held that the risk from exposure in the work place was small and had not materially contributed to her risk of harm since it would need to at least double it to succeed under the Fairchild exception. The Court of Appeal reversed this and held that the Fairchild exception could be applied wherever the defendant negligently exposing the claim- ant to asbestos was a material contribution to the risk of harm and also that section 3 Com- pensation Act 2006 defined the scope of the exception in this manner. The Supreme Court held that the Fairchild exception did apply in the case but that the Court of Appeal was wrong in its interpretation of section 3 Compensation Act 2006.