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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Fairchild v Glenhaven Funeral Services Ltd & Ors [2002] UKHL 22 (20 June 2002) URL: http://www.bailii.org/uk/cases/UKHL/2002/22.html Cite as: [2003] AC 32, [2003] 1 AC 32, [2002] Lloyds Rep Med 361, [2002] ICR 798, [2002] 3 WLR 89, [2002] 3 All ER 305, (2002) 67 BMLR 90, [2002] Lloyd's Rep Med 361, [2002] PIQR P28, [2002] UKHL 22 |
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JISCBAILII_CASE_TORT
Judgments - Fairchild (suing on her own behalf) etc. v. Glenhaven Funeral Services Ltd and others etc.
HOUSE OF LORDS
Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Hoffmann Lord Hutton Lord Rodger of Earlsferry
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
FAIRCHILD (SUING ON HER OWN BEHALF AND ON BEHALF OF THE ESTATE OF AND DEPENDANTS OF ARTHUR ERIC FAIRCHILD (DECEASED)) (APPELLANT) v GLENHAVEN FUNERAL SERVICES LIMITED AND OTHERS (RESPONDENTS) FOX (SUING AS WIDOW AND ADMINISTRATRIX OF THOMAS FOX (DECEASED)) (FC) (APPELLANT) v SPOUSAL (MIDLANDS) LIMITED (RESPONDENTS
MATTHEWS (FC) (APPELLANT)
v
ASSOCIATED PORTLAND CEMENT MANUFACTURERS (1978) LIMITED AND OTHERS (RESPONDENTS)
ORAL JUDGMENT: 16 MAY 2002
REASONS: 20 JUNE 2002
[2002] UKHL 22
LORD BINGHAM OF CORNHILLMy Lords,
(1) C was employed at different times and for differing periods by both A and B, and
(2) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might cause a mesothelioma, and
(3) both A and B were in breach of that duty in relation to C during the periods of C's employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and
(4) C is found to be suffering from a mesothelioma, and
(5) any cause of C's mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted, but
(6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together,is C entitled to recover damages against either A or B or against both A and B? To this question (not formulated in these terms) the Court of Appeal (Brooke, Latham and Kay LJJ), in a reserved judgment of the court reported at [2002] 1 WLR 1052, gave a negative answer. It did so because, applying the conventional "but for" test of tortious liability, it could not be held that C had proved against A that his mesothelioma would probably not have occurred but for the breach of duty by A, nor against B that his mesothelioma would probably not have occurred but for the breach of duty by B, nor against A and B that his mesothelioma would probably not have occurred but for the breach of duty by both A and B together. So C failed against both A and B. The crucial issue on appeal is whether, in the special circumstances of such a case, principle, authority or policy requires or justifies a modified approach to proof of causation.
Principle
"The 'but for' test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The application of the test 'gives the result, contrary to common sense, that neither is a cause': Winfield and Jolowicz on Tort, 13th ed (1989), p. 134. In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury: see, e.g., Chapman v Hearse, Baker v Willoughby [1970] AC 467; McGhee v National Coal Board; M'Kew (to which I shall shortly refer in some detail). The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations."
"The traditional approach to causation has come under attack in a number of cases in which there is concern that due to the complexities of proof, the probable victim of tortious conduct will be deprived of relief. This concern is strongest in circumstances in which, on the basis of some percentage of statistical probability, the plaintiff is the likely victim of the combined tortious conduct of a number of defendants, but cannot prove causation against a specific defendant or defendants on the basis of particularized evidence in accordance with traditional principles. The challenge to the traditional approach has manifested itself in cases dealing with non-traumatic injuries such as man-made diseases resulting from the widespread diffusion of chemical products, including product liability cases in which a product which can cause injury is widely manufactured and marketed by a large number of corporations."
McLachlin J, extra-judicially ("Negligence Law - Proving the Connection", in Torts Tomorrow, A Tribute to John Fleming, ed Mullany and Linden, LBC Information Services 1998, at p 16), has voiced a similar concern:
"Tort law is about compensating those who are wrongfully injured. But even more fundamentally, it is about recognising and righting wrongful conduct by one person or a group of persons that harms others. If tort law becomes incapable of recognising important wrongs, and hence incapable of righting them, victims will be left with a sense of grievance and the public will be left with a feeling that justice is not what it should be. Some perceive that this may be occurring due to our rules of causation.
In recent years, a conflation of factors have caused lawyers, scholars and courts to question anew whether the way tort law has traditionally defined the necessary relationship between tortious acts and injuries is the right way to define it, or at least the only way. This questioning has happened in the United States and in England and has surfaced in Australia. And it is happening in Canada. Why is this happening? Why are courts now asking questions that for decades, indeed centuries, did not pose themselves, or if they did, were of no great urgency? I would suggest that it is because too often the traditional 'but-for', all-or-nothing, test denies recovery where our instinctive sense of justice - of what is the right result for the situation - tells us the victim should obtain some compensation."
"The first point to emphasise is that common sense answers to questions of causation will differ according to the purpose for which the question is asked. Questions of causation often arise for the purpose of attributing responsibility to someone, for example, so as to blame him for something which has happened or to make him guilty of an offence or liable in damages. In such cases, the answer will depend upon the rule by which responsibility is being attributed."
More recently, in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 WLR 1353, p 1388, para 128, he said:
"There is therefore no uniform causal requirement for liability in tort. Instead, there are varying causal requirements, depending upon the basis and purpose of liability. One cannot separate questions of liability from questions of causation. They are inextricably connected. One is never simply liable; one is always liable for something and the rules which determine what one is liable for are as much part of the substantive law as the rules which determine which acts give rise to liability".
Laws LJ was reflecting this approach when he said in Rahman v Arearose Ltd [2001] QB 351 at 367-368:
"So in all these cases the real question is, what is the damage for which the defendant under consideration should be held responsible. The nature of his duty (here, the common law duty of care) is relevant; causation, certainly, will be relevant - but it will fall to be viewed, and in truth can only be understood, in light of the answer to the question: from what kind of harm was it the defendant's duty to guard the claimant? . . . Novus actus interveniens, the eggshell skull, and (in the case of multiple torts) the concept of concurrent tortfeasors are all no more and no less than tools or mechanisms which the law has developed to articulate in practice the extent of any liable defendant's responsibility for the loss and damage which the claimant has suffered."
"It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted."
Authority
". . . . if the statute prescribes a proper system of ventilation by the circulation of fresh air so as to render harmless, so far as practicable, all fumes, dust and other impurities that may be injurious to health, generated in the course of work carried on in the factory, and if it is proved that there is no system or only an inadequate system of ventilation, it requires little further to establish a causal link between that default and the illness, due to noxious dust, of a person employed in the shop. Something is required as was held in Wardlaw's case. I was a party to that decision and would not in any way resile from it. But it must not be pressed too far. In the present case there was, in my opinion, ample evidence to support the appellants' case."
Since the family could not complain of the production of dust, and the deceased had been forced to inhale some noxious particles without having any legal complaint, it was doubly incumbent on the employer to safeguard him against any additional risk (p 616). Viscount Simonds' conclusion was clearly expressed (at pp 619-620):
"For it appears to me that [the evidence] clearly established that dust containing dangerous particles of silica was emitted into the air by the operation of pneumatic hammers on the castings, that this dust hung about in concentrated form longer than it would have if there had been better ventilation, and that improved roof ventilators were practicable and would have effectively improved the conditions. It follows that owing to the default of the respondents the deceased was exposed to a greater degree of risk than he should have been, and, though it is impossible, even approximately, to quantify the particles which he must, in any event, have inhaled and those which he inhaled but need not have, I cannot regard the excess as something so negligible that the maxim 'de minimis' is applicable. Accordingly, following the decision in Wardlaw's case, I must hold the respondents liable."
Lord Oaksey and Lord Morton of Henryton agreed. Lord Cohen agreed and said (at p 622):
"Pneumoconiosis is a progressive disease. The longer a workman is exposed to an intense cloud the graver must be the risk of infection. In the present case it is clearly established by the evidence that at any rate down to 1949 the tool with which the deceased was working on dirty castings created a thick cloud of dust which must have necessarily included siliceous particles to an extent which cannot classed as 'de minimis'. The respondents are admittedly not to blame for the generation of this cloud, but any failure to provide proper ventilation must, I think, lengthen the period during which the cloud remains intense. It seems to me to follow that the respondents' failure to provide adequate ventilation must increase the risk to which the workmen are exposed. Reading the evidence as a whole, I think it establishes that (to use the language of Lord Reid in Wardlaw's case) 'on a balance of probabilities the breach of duty caused or materially contributed to' the injury."
Lord Keith of Avonholm regarded it as common sense that better ventilation would have appreciably diminished the dust which was in the air for the deceased to inhale (p 627) and accordingly concluded that his death from pneumoconiosis should be ascribed at least partially to the fault of the defenders. Again the case involved a single employer: but the dust, although "innocent" when first produced became, in effect, "guilty" because of the employer's conduct in allowing it to remain in the air for an excessive period. It is noteworthy that two members of the House (Viscount Simonds and Lord Cohen) attached significance to the exposure of the deceased to an increased risk.
Lord Cohen and Lord Guest agreed, as did Lord Hodson although with some initial hesitation. Lord Guest described the question as a pure question of fact whether on the balance of probabilities the dermatitis had arisen from the pursuer's employment (p 1431). The House would seem to have regarded the pursuer as establishing a prime facie case which the defenders had failed to displace."In my opinion, when a man who has not previously suffered from a disease contracts that disease after being subjected to conditions likely to cause it, and when he shows that it starts in a way typical of disease caused by such conditions, he establishes a prima facie presumption that his disease was caused by those conditions. I think that the facts proved in this case do establish such a presumption. That presumption could be displaced in many ways. The respondents sought to show, first, that it is negatived by the subsequent course of the disease and, secondly, by suggesting tinea pedis as an equally probable cause of its origin. I have found the case difficult, but on the evidence as it stands I have come to the opinion that they have failed on both points. If the appellant's disease and consequent loss should be attributed to the work which he was doing in the respondents' service, it was not argued that they are not liable."
"As I have maintained earlier, the pursuer, in order to succeed, must also establish, on a balance of probabilities, that this fault on the part of the defenders 'caused or materially contributed to his injury', that is to his contracting dermatitis. Dr Hannay's evidence was that he could not say that the provision of showers would probably have prevented the disease. He said that it would have reduced the risk materially but he would not go further than that. Dr Ferguson said that washing reduces the risk. Pursuer's counsel maintained that a material increase in the risk of contracting a disease was the same as a material contribution to contracting the disease and that Dr Hannay established this by his evidence. I think that defenders' counsel was correct when he said that the distinction drawn by Dr Hannay was correct and that an increase in risk did not necessarily mean a material contribution to the contracting of the disease. The two concepts are entirely different. A material increase in risk may refer only to possibilities and may not make a possibility into a probability. It may strengthen the possibility but that cannot mean that in all such cases the possibility has become a probability. What the pursuer has to show is that, as he avers, he would not have contracted the disease but for the defenders' breach of duty. He has to show that this was probable and the degrees of risk have no relevance unless they make the contraction of the disease more probable than not contracting the disease. He cannot succeed if the only inference from the evidence is that lack of shower baths is a possibility as a cause of his having contracted the disease and the provision of shower baths would have increased the possibility but not made it a probability. That is the only inference which I can draw from Dr Hannay's evidence and that was the best evidence for the pursuer. Causal connection between fault and the contraction of the disease has not been established."
"Q. Do I understand you to say you are not in a position to say that the provision of showers would probably have prevented his contracting this skin trouble?
In answer to further questions the doctor repeated his opinion that he could only say that the provision of showers would have reduced the chances of the pursuer contracting dermatitis and that that was as far as he was able to go. In the course of his judgment the Lord President, Lord Clyde, considered the pneumoconiosis cases and expressed his conclusion (at p 44):A. No one could say that that would prevent that man developing the condition. It would be likely to reduce the chances."
Lord Migdale was of the same opinion (at pp 47-48):"But in contrast to the pneumoconiosis cases, the present case is essentially concerned with proof of the causal connection between the fault alleged (i.e. inadequate washing facilities) and the development of dermatitis. Even if the pursuer had established (as he did not) that the absence of washing facilities increased the risk of the pursuer getting dermatitis, that would clearly not prove that the absence of these facilities caused the disease, nor indeed would it go any distance towards proving it. For risk of dermatitis and causation of dermatitis are two quite separate matters."
"Counsel for the pursuer contended that as it was now accepted that the failure to provide a shower was a breach of the duty which the defenders owed to the pursuer to take reasonable steps for his well-being, the doctors' evidence that it would have materially reduced the risk of dermatitis is enough to link the failure with the injury. Counsel for the defenders, on the other hand, contended that the test of causal connection between the breach and the injury is whether the provision of a shower would, on a balance of probabilities, have prevented the dermatitis. The Lord Ordinary says an increase in risk does not mean a material contribution to the contracting of the disease. A material increase in risk may refer only to possibilities and it does not make a possibility into a probability. 'What the pursuer has to show is that, as he avers, he would not have contracted the disease but for the breach of duty'. He has to show this on a balance of probabilities.
Lord Johnston was more hesitant, but in view of the other opinions did not feel inclined to take the view that the evidence was sufficient to allow him to hold that the test of the balance of probability had been satisfied (p 50).In my opinion this is correct. Unless the pursuer can point to evidence that shows that a shower would more probably have avoided the disease than not, he cannot succeed and I do not find that evidence in this case."
Thus the issue, as presented to the House, was whether the pursuer could succeed despite his inability to show that he would probably not have suffered dermatitis but for the defenders' failure to provide the showers which they should have provided."It was accepted that [the provision of washing facilities] would have been a reasonable precaution, but it did not follow that this would have eliminated the risk. The employee might have developed dermatitis in any event. If the precaution would not have prevented the disease, the appellant was not entitled to damages. In the case of pneumoconiosis the inhalation of dangerous dust inevitably created a basis for the disease by accumulation, whereas in the case of dermatitis a particle of grit would cause the disease only if there were an abrasion which opened up the layer below the horny outer layer of the skin. In the case of pneumoconiosis all the particles could be blamed. It was not so in the case of dermatitis. The mere fact that shower baths would have reduced the chances of the contraction of the disease did not mean that what was probable would thereby have been rendered improbable."
"In the present case the evidence does not show - perhaps no one knows - just how dermatitis of this type begins. It suggests to me that there are two possible ways. It may be that an accumulation of minor abrasions of the horny layer of the skin is a necessary precondition for the onset of the disease. Or it may be that the disease starts at one particular abrasion and then spreads, so that multiplication of abrasions merely increases the number of places where the disease can start and in that way increases the risk of its occurrence.
I am inclined to think that the evidence points to the former view. But in a field where so little appears to be known with certainty I could not say that that is proved. If it were, then this case would be indistinguishable from Wardlaw's case. But I think that in cases like this we must take a broader view of causation. 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 that this disease might develop. It does not and could not explain just why that is so. But experience shows that it is so. Plainly that must be because what happens while the man remains unwashed can have a causative effect, though just how the cause operates is uncertain. I cannot accept the view expressed in the Inner House that once the man left the brick kiln he left behind the causes which made him liable to develop dermatitis. That seems to me quite inconsistent with a proper interpretation of the medical evidence. Nor can I accept the distinction drawn by the Lord Ordinary between materially increasing the risk that the disease will occur and making a material contribution to its occurrence.
Lord Wilberforce acknowledged the need for the pursuer to establish both a breach of duty and a causal connection between the default and the disease complained of (p 5), and also the difficulties of proof which the pursuer faced (pp 5-6):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 everyday 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 Wilberforce accepted that merely to show that a breach of duty led to an increase of risk was not enough to enable a pursuer to succeed, but continued (at page 6):"[The pursuer's medical expert] could not do more than say that the failure to provide showers materially increased the chance, or risk, that dermatitis might set in."
Having referred to Wardlaw's and Nicholson's cases Lord Wilberforce concluded (at page 7):"But the question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his employers cannot positively prove the contrary. In this intermediate case there is an appearance of logic in the view that the pursuer, on whom the onus lies, should fail - a logic which dictated the judgments below. The question is whether we should be satisfied, in factual situations like the present, with this logical approach. In my opinion, there are further considerations of importance. First, it is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause. Secondly, from the evidential point of view, one may ask, why should a man who is able to show that his employer should have taken certain precautions, because without them there is a risk, or an added risk, of injury or disease, and who in fact sustains exactly that injury or disease, have to assume the burden of proving more: namely, that it was the addition to the risk, caused by the breach of duty, which caused or materially contributed to the injury? In many cases, of which the present is typical, this is impossible to prove, just because honest medical opinion cannot segregate the causes of an illness between compound causes. And if one asks which of the parties, the workman or the employers, should suffer from this inherent evidential difficulty, the answer as a matter of policy or justice should be that it is the creator of the risk who, ex hypothesi must be taken to have foreseen the possibility of damage, who should bear its consequences."
Lord Simon of Glaisdale considered that Wardlaw's and Nicholson's cases established a rule (at page 8)"The present factual situation has its differences: the default here consisted not in adding a material quantity to the accumulation of injurious particles but by failure to take a step which materially increased the risk that the dust already present would cause injury. And I must say that, at least in the present case, to bridge the evidential gap by inference seems to me something of a fiction, since it was precisely this inference which the medical expert declined to make. But I find in the cases quoted an analogy which suggests the conclusion that, in the absence of proof that the culpable addition had, in the result, no effect, the employers should be liable for an injury, squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default."
Lord Simon then continued (page 8):"that where an injury is caused by two (or more) factors operating cumulatively, one (or more) of which factors is a breach of duty and one (or more) is not so, in such a way that it is impossible to ascertain the proportion in which the factors were effective in producing the injury or which factor was decisive, the law does not require a pursuer or plaintiff to prove the impossible, but holds that he is entitled to damages for the injury if he proves on a balance of probabilities that the breach or breaches of duty contributed substantially to causing the injury. If such factors so operate cumulatively, it is, in my judgment, immaterial whether they do so concurrently or successively."
Lord Simon regarded "material reduction of the risk" and "substantial contribution to the injury" as mirror concepts. Any other conclusion would mean that the defenders were under a legal duty which they could, on the present state of medical knowledge, ignore (page 9). Lord Kilbrandon appears to have adopted a more orthodox approach to tortious liability. He said (at page 10):"The question, then, is whether on the evidence the appellant brought himself within this rule. In my view, the failure to take steps which would bring about a material reduction of the risk involves, in this type of case, a substantial contribution to the injury. In this type of case a stark distinction between breach of duty and causation is unreal. If the provision of shower baths was (as the evidence showed) a precaution which any reasonable employer in the respondents' position would take, it means that such employer should have foreseen that failure to take the precaution would, more probably than not, substantially contribute towards injury: this is sufficient prima facie evidence."
In Lord Salmon's opinion the question before the House was whether the pursuer's dermatitis was proved to have been caused or materially contributed to by the defenders' negligence (page 11). He rejected the view, expressed by the Lord President (see paragraph 18 above) that to increase the risk of injury was not, in the circumstances of this case, to cause the injury. In such a case he regarded it as unrealistic and contrary to ordinary common sense to hold that the negligence which materially increased the risk of injury did not materially contribute to causing it (pages 11-12). He observed (at page 12):"When you find it proved (a) that the defenders knew that to take the precaution reduces the risk, chance, possibility or probability of the contracting of a disease, (b) that the precaution has not been taken, and (c) that the disease has supervened, it is difficult to see how those defenders can demand more by way of proof of the probability that the failure caused or contributed to the physical breakdown ... In the present case, the pursuer's body was vulnerable, while he was bicycling home, to the dirt which had been deposited on it during his working hours. It would not have been if he had had a shower. If showers had been provided he would have used them. It is admittedly more probable that disease will be contracted if a shower is not taken. In these circumstances I cannot accept the argument that nevertheless it is not more probable than not that, if the duty to provide a shower had not been neglected, he would not have contracted the disease. The pursuer has after all, only to satisfy the court of a probability, not to demonstrate an irrefragable chain of causation, which in a case of dermatitis, in the present state of medical knowledge, he could probably never do."
Lord Salmon's conclusion (pages 12-13) was expressed in these terms:"I think that the approach by the courts below confuses the balance of probability test with the nature of causation. Moreover, it would mean that in the present state of medical knowledge and in circumstances such as these (which are by no means uncommon) an employer would be permitted by the law to disregard with impunity his duty to take reasonable care for the safety of his employees."
"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."
Omitted from this statement is any reference to condition (5) in the composite question formulated in paragraph 2 at the outset of this opinion. It was on this omission that Sir Nicolas Browne-Wilkinson V-C founded his dissenting opinion (at page 779):"If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue; and if the two parties stand in such a relationship that the one party owes a duty not to conduct himself in that way; and if the first party does conduct himself in that way; and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained."
"To apply the principle in McGhee v National Coal Board [1973] 1 WLR 1 to the present case would constitute an extension of that principle. In the McGhee case there was no doubt that the pursuer's dermatitis was physically caused by brick dust: the only question was whether the continued presence of such brick dust on the pursuer's skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz, brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust.
In the present case the question is different. There are a number of different agents which could have caused the RLF. Excess oxygen was one of them. The defendants failed to take reasonable precautions to prevent one of the possible causative agents (e.g. excess oxygen) from causing RLF. But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. The plaintiff's RLF may have been caused by some completely different agent or agents, e.g. hypercarbia, intraventicular haemorrhage apnoea or patent ductus arteriosus. In addition to oxygen, each of those conditions has been implicated as a possible cause of RLF. This baby suffered from each of those conditions at various times in the first two months of his life. There is no satisfactory evidence that excess oxygen is more likely than any of those other four candidates to have caused RLF in this baby. To my mind, the occurrence of RLF following a failure to take a necessary precaution to prevent excess oxygen causing RLF provides no evidence and raises no presumption that it was excess oxygen rather than one or more of the four other possible agents which caused or contributed to RLF in this case.
On the defendants' appeal to the House, this passage in the Vice-Chancellor's judgment was expressly approved by Lord Bridge of Harwich, who gave the only opinion, with which Lord Fraser of Tullybelton, Lord Lowry, Lord Griffiths and Lord Ackner concurred, and the appeal was allowed: [1988] AC 1074,1090-1092. It is plain, in my respectful opinion, that the House was right to allow the defendants' appeal in Wilsher, for the reasons which the Vice-Chancellor had given and which the House approved. It is one thing to treat an increase of 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. The decision of the Court of Appeal did indeed involve an extension of the McGhee principle, as Mustill LJ recognised: [1987] QB 730, 771-772. Lord Bridge was also, as I respectfully think, right to describe the observations of Lord Wilberforce on reversal of the burden of proof (see paragraph 20 above) as expressing a "minority opinion" (p 1087), if Lord Wilberforce was suggesting more than that the proof of an increased risk can found a prima facie case which casts an evidential burden on the defendant. But much difficulty is caused by the following passage in Lord Bridge's opinion in which, having cited the opinions of all members of the House in McGhee, he said (p 1090):The position, to my mind, is wholly different from that in the McGhee case [1973] 1 WLR 1, where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. 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."
This is a passage to which the Court of Appeal very properly gave weight ([2002] 1 WLR 1052, 1080, para 103), and in argument on these appeals counsel for the respondents strongly relied on it as authority for their major contention that a claimant can only succeed if he proves on the balance of probabilities that the default of the particular defendant had caused the damage of which he complains. As is apparent from the conclusions expressed in paragraph 21 above, I cannot for my part accept this passage in Lord Bridge's opinion as accurately reflecting the effect of what the House, or a majority of the House, decided in McGhee, which remains sound authority. I am bound to conclude that this passage should no longer be treated as authoritative."The conclusion I draw from these passages is that McGhee v National Coal Board [1973] 1 WLR 1 laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders' negligence had materially contributed to the pursuer's injury. The decision, in my opinion, is of no greater significance than that and to attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one."
The wider jurisprudence
23. The problem of attributing legal responsibility where a victim has suffered a legal wrong but cannot show which of several possible candidates (all in breach of duty) is the culprit who has caused him harm is one that has vexed jurists in many parts of the world for many years. As my noble and learned friend Lord Rodger of Earlsferry shows (see paras 157-160 below) it engaged the attention of classical Roman jurists. It is indeed a universal problem calling for some consideration by the House, however superficially, of the response to it in other jurisdictions.- Professor Christian von Bar (The Common European Law of Torts, 2000, vol 2, pp 441-443) has written:
In similar vein, Professor Walter van Gerven (van Gerven, Lever and Larouche: Cases, Materials and Text on National, Supranational and International Tort Law, 2000, p 441), surveying the tort law of, in particular, Germany, France and Britain, wrote:"The phenomenon of double causation is thus an insufficient argument against the but - for test. It is merely peripheral. Of greater importance are the many cases in which, although one cannot speak of a scientifically ascertainable or explicable 'cause' and 'effect', courts have awarded compensation on the basis of fault and probability. German law on medical negligence provides the example of the reduced burden of proof of causation in cases of grave treatment errors. Recent environmental legislation has reacted to the problem of scientifically uncertain causal relationships in a similar manner. The reversal of the burden of proof regarding causation is no more than a reduction of the probability required for attribution. A further development has arisen in the Netherlands regarding liability for medicines in the context of DES liability. The Hoge Raad's solution, on the basis of Art 6.99BW, of holding jointly liable to cancer sufferers the manufacturers of all those carcinogenic medicines available at the time when the victims' mothers had taken those substances is clearly unjustifiable under the conditio sine qua non rule. If the issue is seen to be whether the victim or the person posing the risk is better positioned to bear that risk, the solution is more comprehensible."At p 461, after reference to McGhee's case ([1973] 1 WLR 1) and Wilsher's case ([1988] AC 1074) van Gerven added:"In many cases, it will be possible for the victim to show that he or she has suffered injury, that it has been caused by someone who must have been at fault, but the author of that fault will not be identifiable. The best that the victim will be able to achieve is to define a class of persons of which the actual tortfeasor must be a member. Strictly speaking, however, the basic conditio sine qua non test will not be met, since it cannot be said of any member of the class that the injury would not have happened 'but for' his or her conduct, given that in fact any other member could have caused the injury. Nonetheless, all the legal systems studied here have acknowledged that it would be patently unfair to deny recovery to the victim for that reason."He concluded (at p 465):"McGhee had put English law on the same path as German law, albeit with a different and arguably stronger rationale (negligent creation of risk instead of impossibility for the plaintiff to prove causation). Furthermore, it must be noted that some French legal writers are advocating that French law moves away from perte d'une chance towards a reversal of the burden of proof on the basis of the negligent creation of risk. It is unfortunate that the House of Lords retreated from McGhee at a time when laws were converging. In the end, the sole relief for the plaintiff under English law is that it suffices for the purposes of causation to show that the conduct of the defendant made a material contribution to the injury, even if it was not its sole cause.""In certain cases, the plaintiff can show that he or she suffered injury, that it was caused by some person and that the other conditions of liability are otherwise fulfilled but for the fact that the actual tortfeasor cannot be identified among the members of a class of persons. In these cases, the strict application of the 'but for' test would result in the claim of the plaintiff being dismissed, but all systems under study here make an exception to the rules of causation to provide the plaintiff with compensation."- In Germany cases of this kind have been held to be covered by the second sentence (to which emphasis has been added) of BGB §830.1 which provides:
Of this provision Markesinis and Unberath (The German Law of Torts, 4th ed, 2002, p 900) states:"If several persons have caused damage by an unlawful act committed in common each is responsible for the damage. The same rule applies if it cannot be discovered which of several participants has caused the damage by his act."It is evident that this approach has been applied in Germany in a number of different situations: see Palandt, Bürgerliches Gesetzbuch, 61 ed 2002, para 830. Thus cases decided on this basis have included personal injury caused by several individuals throwing stones in a fight; personal injury of a pedestrian who passes a construction site operated by different companies; personal injury by a New Year's Eve rocket launched by a group of individuals who were all firing rockets; liability of several hunters for the personal injury of a passer-by; liability of a houseowner for the personal injury of a pedestrian who walks on a dangerous path and is hurt on the borderline between the houseowner's land and an unfinished street owned by the local authority; and personal injury of a patient after various interrelated operations conducted by different doctors. The extent to which this approach to causation may be subject to certain restrictive conditions appears to be a matter of some uncertainty; see van Gerven, op. cit, p 446."§830.1, second sentence, applies the same rule to a different situation where several persons participate in a course of conduct which, though not unlawful in itself, is potentially dangerous to others. The difference between this and the previous situation lies in the fact that whereas in the former case of joint tortfeasors the loss is caused by several persons acting in consort, in the latter case only one person has caused the loss but it is difficult if not impossible to say which one has done so. (The classic illustration is that of the huntsmen who discharge their guns simultaneously and the pellets from one unidentifiable gun hit an innocent passer-by.) In this case, as well, §830 BGB adopts the same rule and makes all the participants liable to the victim for the full extent of damage."
The second sentence of this provision would appear to cover the contingency under consideration, although the contrary has been asserted: Unification of Tort Law: Causation, ed J Spier, 2000, at p 77. A somewhat similar provision is to be found in the Austrian Civil Code:"If damage has occurred as a result of the joint action of several persons, or if several persons are concurrently responsible for the same damage, they are all jointly and severally implicated. The same applies if several persons have acted simultaneously or in succession and it is not possible to determine which person's act caused the damage."
A similar provision is also found in the Netherlands Civil Code (Article 6.99 BW: see paragraph 29 below)."1302 In such a case, if the injury is inadvertent, and it is possible to determine the portions thereof, each person is responsible only for the injuries caused by his mistake. If, however, the injury was intentional, or if the portions of the individuals in the injury cannot be determined, all are liable for one and one for all; however, the individual who has paid damages is granted the right to claim reimbursement from the others."
"These cases speak of the action of defendants as being in concert as the ground of decision, yet it would seem they are straining that concept and the more reasonable basis appears in Oliver v Miles, supra. There two persons were hunting together. Both shot at some partridges and in so doing shot across the highway injuring plaintiff who was travelling on it. The court stated they were acting in concert and thus both were liable. The court then stated . .
The conclusion of the court was expressed on p 4, para 5, and p 5, para 7 of the judgment:'We think that . . . each is liable for the resulting injury to the boy, although no one can say definitely who actually shot him. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence.' [Emphasis added]."
The Summers alternative liability theory was incorporated in the Restatement Second of Torts, section 433B, subdivision (3) pages 441-447, which provides:"When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers - both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can . . . We have seen that for the reasons of policy discussed herein, the case is based upon the legal proposition that, under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently."
The Supreme Court of Canada confronted this situation in Cook v Lewis [1951] SCR 830, in which Cartwright J, with whom a majority agreed, said at p 842:"Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm."
"I do not think it necessary to decide whether all that was said in Summers v Tice should be accepted as stating the law of British Columbia, but I am of opinion, for the reasons given in that case, that if under the circumstances of the case at bar the jury, having decided that the plaintiff was shot by either Cook or Akenhead, found themselves unable to decide which of the two shot him because in their opinion both shot negligently in his direction, both defendants should have been found liable."
This decisions bears a strong resemblance to that reached by the English Court of Appeal in Fitzgerald v Lane [1987] QB 781, decided after the decision of the Court of Appeal in Wilsher [1987] QB 730 but before the decision of the House of Lords ([1988] AC 1074)."As stated in the beforementioned conclusions made by experts, they could not conclude whether the situation that resulted in crushed bones in F's left hip region, was a result of falling on the cobble stones in the street or from the truck's front tyre, that ended up on top of F's left hip region. It is possible that the injuries were partially a result of the fall and being hit by the truck. We cannot say anything definite about this. The court finds that it cannot conclude whether it is the fall or being hit by the truck or a combination of both these factors that caused the injury. After a collective evaluation of the whole event the court finds that A (construction company), the scooter and the truck each have a part in F getting injured and each of them must naturally be seen as adequate cause of injury."
In para 3.7.1 of its judgment the Hoge Raad held:"Where the damage may have resulted from two or more events for each of which a different person is liable, and where it has been determined that the damage has arisen from at least one of these events, the obligation to repair the damage rests upon each of these persons, unless he proves that the damage is not the result of the event for which he himself is liable".
"The facts of the present case fall under that provision, on the assumption that it can be proved that [i] each of the firms which put DES in circulation in the relevant period was at fault in so doing and could thus be held liable, [ii] the total injury of each victim could have been caused by any of these 'events' - i.e. putting DES in circulation - and [iii] the injury occurred because of at least one of these 'events' . . .
In para 3.7.5 of its judgment the court said:"[Article 6.99BW] aims to remove the unfairness arising from the fact that the victim must bear his or her own damage because he or she cannot prove whose action caused his or her harm. The victims in the present case are faced with such an evidentiary difficulty . . .".
"It is sufficient for each DES daughter to establish . . . in relation to each of the pharmaceutical companies:
(i)
that the pharmaceutical company in question put DES in circulation during the relevant period and can therefore be found liable because it committed a fault;
(ii)
that another or several other producers - regardless of whether they are parties to the proceedings or not - also put DES in circulation during the relevant period and can therefore also be found liable because it (they) committed a fault; and
(iii)
that she suffered injury that resulted from the use of DES, but that it is no longer possible to determine from which producer the DES originated."
See van Gerven, op cit, at pages 447-448.In principle the burden of proof on these issues rests on the DES daughter concerned."
In that case McHugh J dissented on the facts but in Naxakis v Western General Hospital (1999) 197 CLR 269 both Gaudron J (at p 279, para 31) and Callinan J (at p 312, para 127) quoted what he had said with approval. In Canada, Sopinka J, speaking for the Supreme Court in Snell v Farrell [1990] 2 SCR 311 said, at pp 326-327:"Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff. That being so, whether the claim is in contract or tort, the fact that the risk eventuated at a particular time or place by reason of the conduct of the defendant does not itself materially contribute to the plaintiff's injury unless the fact of that particular time or place increased the risk of the injury occurring."
Sopinka J suggested, at p 328, that dissatisfaction with the traditional approach to causation stemmed to a large extent from its too rigid application by the courts in many cases, and that causation need not be determined by scientific precision. Despite this judgment the Manitoba Court of Appeal, in Webster v Chapman (1997) 155 DLR (4th) 82 held, relying on McGhee, that no distinction should be made in that case between materially increasing the risk of damage and materially contributing to the damage."I have examined the alternatives arising out of the McGhee case. They were that the plaintiff simply prove that the defendant created a risk that the injury which occurred would occur. Or, what amounts to the same thing, that the defendant has the burden of disproving causation. If I were convinced that defendants who have a substantial connection to the injury were escaping liability because plaintiffs cannot prove causation under currently applied principles, I would not hesitate to adopt one of these alternatives. In my opinion, however, properly applied, the principles relating to causation are adequate to the task. Adoption of either of the proposed alternatives would have the effect of compensating plaintiffs where a substantial connection between the injury and the defendant's conduct is absent. Reversing the burden of proof may be justified where two defendants negligently fire in the direction of the plaintiff and then by their tortious conduct destroy the means of proof at his disposal. In such a case it is clear that the injury was not caused by neutral conduct. It is quite a different matter to compensate a plaintiff by reversing the burden of proof for an injury that may very well be due to factors unconnected to the defendant and not the fault of anyone."
The majority decision in Bendix was followed in Wallaby Grip (BAE) Pty Ltd v Macleay Area Health Service (1998) 17 NSWCCR 355. A different result was reached in E M Baldwin & Son Pty Ltd v Plane (1999) Aust Torts Reports 81-499, but on different medical evidence. A different view of the law was also expressed in Rutherford v Owens-Illinois Inc 67 Cal. Rptr. 2d 16 (1997). In a judgment with which the Chief Justice and all save one member of the Supreme Court of California concurred, Baxter J observed (at p 19):". . . the law's view of causation is less concerned with logical and philosophical considerations than with the need to produce a just result to the parties involved. Where a defendant is under a legal duty to take precautions to protect the plaintiff from the risk of contracting disease, and, by omitting those precautions he substantially increases the risk of the plaintiff contracting that disease, the law treats that increase in risk as a sufficient basis, in the absence of evidence showing how the infection occurred, for an inference that the omission of the precautions materially contributed to the contracting of the disease. Justice requires such an approach to the problem of causation and it is the approach which was taken by the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1."
Baxter J reviewed earlier cases such as Summers 119 P 2d 1 (1948) and Sindell 26 Cal. 3d 588 (1980) and specifically addressed the factual possibility that a mesothelioma may be caused by inhalation of a single fibre, acknowledging (at pp 30-31) that the single fibre theory raised an apparently unanswerable question: "which particular fibre or fibres actually caused the cancer to begin forming[?]". He observed (at p 31) that plaintiffs could not be expected to prove the scientifically unknown details of carcinogenesis or trace the unknowable path of a given asbestos fibre. For reasons given very clearly but at some length Baxter J rejected a burden-shifting approach to cases of this kind. At p 36 the judgment concluded:"Proof of causation in such cases will always present inherent practical difficulties, given the long latency period of asbestos-related disease, and the occupational settings that commonly exposed the worker to multiple forms and brands of asbestos products with varying degrees of toxicity. In general, however, no insuperable barriers prevent an asbestos-related cancer plaintiff from demonstrating that exposure to the defendant's asbestos products was, in reasonable medical probability, a substantial factor in causing or contributing to his risk of developing cancer. We conclude that plaintiffs are required to prove no more than this. In particular, they need not prove with medical exactitude that fibers from a particular defendant's asbestos-containing products were those, or among those, that actually began the cellular process of malignancy."
The dissent of Mosk J related solely to the court's decision on shifting of the burden: he considered (p 38) that the decision of the majority would deprive numerous plaintiffs suffering from latent diseases caused by exposure to asbestos in the workplace from recovering full compensation."In the context of a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant's defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a 'legal cause' of his injury, ie, a substantial factor in bringing about the injury. In an asbestos-related cancer case, the plaintiff need not prove that fibers from the defendant's product were the ones, or among the ones, that actually began the process of malignant cellular growth. Instead, the plaintiff may meet the burden of proving that exposure to defendant's product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiff's or decedent's risk of developing cancer."
Policy
The Court of Appeal had in mind that in each of the cases discussed in paras 14-21 above (Wardlaw, Nicholson, Gardiner, McGhee) there was only one employer involved. Thus there was a risk that the defendant might be held liable for acts for which he should not be held legally liable but no risk that he would be held liable for damage which (whether legally liable or not) he had not caused. The crux of cases such as the present, if the appellants' argument is upheld, is that an employer may be held liable for damage he has not caused. The risk is the greater where all the employers potentially liable are not before the court. This is so on the facts of each of the three appeals before the House, and is always likely to be so given the long latency of this condition and the likelihood that some employers potentially liable will have gone out of business or disappeared during that period. It can properly be said to be unjust to impose liability on a party who has not been shown, even on a balance of probabilities, to have caused the damage complained of. On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered. I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim. Were the law otherwise, an employer exposing his employee to asbestos dust could obtain complete immunity against mesothelioma (but not asbestosis) claims by employing only those who had previously been exposed to excessive quantities of asbestos dust. Such a result would reflect no credit on the law. It seems to me, as it did to Lord Wilberforce in McGhee [1973] 1 WLR 1 at 7, that"also susceptible of unjust results. It may impose liability for the whole of an insidious disease on an employer with whom the claimant was employed for quite a short time in a long working life, when the claimant is wholly unable to prove on the balance of probabilities that that period of employment had any causative relationship with the inception of the disease. This is far too weighty an edifice to build on the slender foundations of McGhee v National Coal Board [1973] 1WLR 1, and Lord Bridge has told us in Wilsher v Essex Area Health Authority [1988] AC 1074 that McGhee established no new principle of law at all. If we were to accede to the claimants' arguments, we would be distorting the law to accommodate the exigencies of a very hard case. We would be yielding to a contention that all those who have suffered injury after being exposed to a risk of that injury from which someone else should have protected them should be able to recover compensation even when they are quite unable to prove who was the culprit. In a quite different context Lord Steyn has recently said in Frost v Chief Constable of Yorkshire [1999] 2 AC 455, 491 that our tort system sometimes results in imperfect justice, but it is the best the common law can do."
"the employers should be liable for an injury, squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default."
Conclusion
LORD NICHOLLS OF BIRKENHEADMy Lords,
LORD HOFFMANNMy Lords,
"If one asks which of the parties, the workman or the employers, should suffer from this inherent evidential difficulty [i.e. the absence of knowledge of the mechanism by which dust caused the disease], the answer as a matter of policy or justice should be that it is the creator of the risk who, ex hypothesi must be taken to have foreseen the possibility of damage, who should bear its consequences."
Lord Simon of Glaisdale said (at p. 9):
"To hold otherwise would mean that the respondents were under a legal duty which they could, in the present state of medical knowledge, with impunity ignore."
Lord Salmon said (at p. 12):
"It would mean that in the present state of medical knowledge and in circumstances such as these (which are by no means uncommon) an employer would be permitted by the law to disregard with impunity his duty to take reasonable care for the safety of his employees."
"If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue; and if the two parties stand in such a relationship that the one party owes a duty not to conduct himself in that way; and if the first party does conduct himself in that way; and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained."
LORD HUTTONMy Lords,
"5. The risk of mesothelioma increases in proportion to the dose of asbestos received and each successive period of exposure augments the risk that mesothelioma will occur. There is no evidence of a threshold dose below which there is no risk but at low levels of exposure the risk is very small, whereas a lagger with his high level of exposure has a 10% chance of dying from mesothelioma. Mesothelioma usually occurs in persons who have inhaled millions of asbestos fibres in the course of their work.
…..
7. The mechanism by which asbestos causes mesothelioma being unknown, the transformation of a normal mesothelial to a cancerous cell could be due to the action of a single fibre, a few fibres or multiple fibres. It is believed that carcinogenesis of mesothelioma is a multi-stage process involving a sequence of 6 or 7 genetic changes which together result in a normal mesothelial cell being transformed into a malignant mesothelioma cell. Asbestos is probably involved at one or more stages of this process."
The defender sought to distinguish Wardlaw's case by arguing that in that case every particle of dust inhaled played its part in causing the onset of the disease whereas in the case of McGhee the disease might have been started by a single abrasion."Reliance was placed on Wardlaw v Bonnington Castings and Nicholson v Atlas Steel Foundry and Engineering Co. The dicta in these cases were followed in Gardiner v Motherwell Machinery and Scrap Co which applied the principles of the two earlier cases. Where there were a number of contributory factors to an injury, it was enough to bring the case within the dicta if the employers were guilty in relation to one."
"But I think that in cases like this we must take a broader view of causation. 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 that this disease might develop. It does not and could not explain just why that is so. But experience shows that it is so. Plainly that must be because what happens while the man remains unwashed can have a causative effect, though just how the cause operates is uncertain. I cannot accept the view expressed in the Inner House that once the man left the brick kiln he left behind the causes which made him liable to develop dermatitis. That seems to me quite inconsistent with a proper interpretation of the medical evidence. Nor can I accept the distinction drawn by the Lord Ordinary between materially increasing the risk that the disease will occur and making a material contribution to its occurrence.
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 everyday 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."
"My Lords, I agree with the judge below to the extent that merely to show that a breach of duty increases the risk of harm is not, in abstracto, enough to enable the pursuer to succeed. He might, on this basis, still be met by successful defences. Thus, it was open to the respondents, while admitting, or being unable to contest, that their failure had increased the risk, to prove, if they could, as they tried to do, that the appellant's dermatitis was 'non-occupational'.
But the question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his employers cannot positively prove the contrary. In this intermediate case there is an appearance of logic in the view that the pursuer, on whom the onus lies, should fail— a logic which dictated the judgments below. The question is whether we should be satisfied, in factual situations like the present, with this logical approach. In my opinion, there are further considerations of importance. First, it is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause. Secondly, from the evidential point of view, one may ask, why should a man who is able to show that his employer should have taken certain precautions, because without them there is a risk, or an added risk, of injury or disease, and who in fact sustains exactly that injury or disease, have to assume the burden of proving more: namely, that it was the addition to the risk, caused by the breach of duty, which caused or materially contributed to the injury? In many cases, of which the present is typical, this is impossible to prove, just because honest medical opinion cannot segregate the causes of an illness between compound causes. And if one asks which of the parties, the workman or the employers, should suffer from this inherent evidential difficulty, the answer as a matter of policy or justice should be that it is the creator of the risk who, ex hypothesi must be taken to have foreseen the possibility of damage, who should bear its consequences."
"But Bonnington Castings Ltd v Wardlaw [1956] AC 613 and Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613 establish, in my view, that where an injury is caused by two (or more) factors operating cumulatively, one (or more) of which factors is a breach of duty and one (or more) is not so, in such a way that it is impossible to ascertain the proportion in which the factors were effective in producing the injury or which factor was decisive, the law does not require a pursuer or plaintiff to prove the impossible, but holds that he is entitled to damages for the injury if he proves on a balance of probabilities that the breach or breaches of duty contributed substantially to causing the injury. If such factors so operate cumulatively, it is, in my judgment, immaterial whether they do so concurrently or successively.
The question, then, is whether on the evidence the appellant brought himself within this rule. In my view, a failure to take steps which would bring about a material reduction of the risk involves, in this type of case, a substantial contribution to the injury. In this type of case a stark distinction between breach of duty and causation is unreal. If the provision of shower baths was (as the evidence showed) a precaution which any reasonable employer in the respondents' position would take, it means that such employer should have foreseen that failure to take the precaution would, more probably than not, substantially contribute towards injury: this is sufficient prima facie evidence."
"In the present case, the pursuer's body was vulnerable, while he was bicycling home, to the dirt which had been deposited on it during his working hours. It would not have been if he had had a shower. If showers had been provided he would have used them. It is admittedly more probable that disease will be contracted if a shower is not taken. In these circumstances I cannot accept the argument that nevertheless it is not more probable than not that, if the duty to provide a shower had not been neglected, he would not have contracted the disease. The pursuer has after all, only to satisfy the court of a probability, not to demonstrate an irrefragable chain of causation, which in a case of dermatitis, in the present state of medical knowledge, he could probably never do."
And at pp 12H-13A:"In the circumstances of the present case it seems to me unrealistic and contrary to ordinary common sense to hold that the negligence which materially increased the risk of injury did not materially contribute to causing the injury."
"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."
"Reading all the speeches together, the principle applied by the House seems to me to amount to this. If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue; and if the two parties stand in such a relationship that the one party owes a duty not to conduct himself in that way; and if the first party does conduct himself in that way; and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained. If this is the right analysis, it seems to me that the shape taken by the enhancement of the risk ought not to be of crucial significance. In the McGhee case [1973] 1 WLR 1, the conduct of the employers made it more likely that the pursuer would contract dermatitis, and he did contract dermatitis. Here, the conduct of those for whom the defendants are liable made it more likely that Martin would contract RLF, and he did contract RLF. If considerations of justice demanded that the pursuer succeed in the one case, I can see no reason why the plaintiff should not succeed in the other."
"The position, to my mind, is wholly different from that in the McGhee case [1973] 1 WLR 1, where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. 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."
"My Lords, it seems to me that both these paragraphs, particularly in the words I have emphasised, amount to saying that, in the circumstances, the burden of proof of causation is reversed and thereby to run counter to the unanimous and emphatic opinions expressed in Bonnington Castings Ltd v Wardlaw [1956] AC 613 to the contrary effect. I find no support in any of the other speeches for the view that the burden of proof is reversed and, in this respect, I think Lord Wilberforce's reasoning must be regarded as expressing a minority opinion."
After citing passages from the four speeches he said, at p 1090C:"A distinction is, of course, apparent between the facts of Bonnington Castings Ltd v Wardlaw, where the "innocent" and "guilty" silica dust particles which together caused the pursuer's lung disease were inhaled concurrently and the facts of McGhee v National Coal Board [1973] 1 WLR 1 where the "innocent" and "guilty" brick dust was present on the pursuer's body for consecutive periods. In the one case the concurrent inhalation of "innocent" and "guilty" dust must both have contributed to the cause of the disease. In the other case the consecutive periods when "innocent" and "guilty" brick dust was present on the pursuer's body may both have contributed to the cause of the disease or, theoretically at least, one or other may have been the sole cause. But where the layman is told by the doctors that the longer the brick dust remains on the body, the greater the risk of dermatitis, although the doctors cannot identify the process of causation scientifically, there seems to be nothing irrational in drawing the inference, as a matter of common sense, that the consecutive periods when brick dust remained on the body probably contributed cumulatively to the causation of the dermatitis. I believe that a process of inferential reasoning on these general lines underlies the decision of the majority in McGhee's case."
"The conclusion I draw from these is that McGhee v National Coal Board [1973] 1 WLR 1 laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders' negligence had materially contributed to the pursuer's injury. The decision, in my opinion, is of no greater significance than that and to attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one."
(1) The fundamental principle of English law in relation to industrial injury cases which has been constantly followed and applied by this House is that stated by Lord Reid in Bonnington Castings v Wardlaw at p 620:
"It would seem obvious in principle that a pursuer or plaintiff must prove not only negligence or breach of duty but also that such fault caused or materially contributed to his injury, and there is ample authority for that proposition both in Scotland and in England. I can find neither reason nor authority for the rule being different where there is breach of a statutory duty. The fact that Parliament imposes a duty for the protection of employees has been held to entitle an employee to sue if he is injured as a result of a breach of that duty, but it would be going a great deal farther to hold that it can be inferred from the enactment of a duty that Parliament intended that any employee suffering injury can sue his employer merely because there was a breach of duty and it is shown to be possible that his injury may have been caused by it. In my judgment, the employee must in all cases prove his case by the ordinary standard of proof in civil actions: he must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury."
(2) Wardlaw was a case where the inhalation of "innocent" and "guilty" dust contributed cumulatively over a period of time to the pursuer's lung disease, and therefore the inhalation of the "guilty" dust was properly regarded as making a material contribution to the disease. Mr Stewart submitted that McGhee's case was also a case where it was established that there had been a cumulative causative process because the "innocent" and "guilty" brick dust had been present on the pursuer's body for consecutive periods. In support of this submission he relied on the passage in Lord Bridge's speech in Wilsher, at 1087H to 1088B, where he referred to the cumulative contribution to the causation of the dermatitis. He further submitted that the present case was not governed by the decision in McGhee because in this case the medical evidence was that it was as probable as not that the onset of the disease was not due to a cumulative process occurring during the entire period when an employee was employed by different employers but was due to the inhalation of a single fibre or a number of fibres during the course of employment with only one employer.
(3) This House held in Wilsher that the decision in McGhee had not laid down a new principle of law that proof of a material increase in risk constitutes proof of causation: rather the decision was based on the robust drawing of an inference. But in the present case it was not open to draw such an inference because the medical evidence established that it was as likely as not that the cause of the onset of the disease was the inhalation of a single fibre or a small number of fibres.
(4) If this House were to hold that the decision in McGhee laid down a principle of law that proof of a material increase of risk constitutes proof of causation, such a decision would reverse the burden of proof contrary to the decision in Wardlaw's case where the House overruled the decision of the Court of Appeal in Vyner v Waldenberg Brothers Ltd [1946] KB 50 that the onus is on an employer to show that the breach of a safety regulation was not the cause of an accident. Moreover if the House were to hold that there was such a principle of law, it would not be possible to confine the principle to cases such as the present ones where there is only one possible cause, and the principle would be extended to cases of medical negligence (as was done by the Court of Appeal in the Wilsher case) and to other cases.
"the law does not require a pursuer or plaintiff to prove the impossible, but holds that he is entitled to damages for the injury if he proves on a balance of probabilities that the breach or breaches of duty contributed substantially to causing the injury. ….
It is also relevant to note that at the conclusion of his speech, at p 9A, Lord Simon cited with approval the decision in Gardiner v Motherwell Machinery and Scrap Co Ltd [1961] 1 WLR 1424 where Lord Reid stated, at p 1429:The question, then, is whether on the evidence the appellant brought himself within this rule. In my view, a failure to take steps which would bring about a material reduction of the risk involves, in this type of case, a substantial contribution to the injury. In this type of case a stark distinction between breach of duty and causation is unreal. If the provision of shower baths was (as the evidence showed) a precaution which any reasonable employer in the respondents' position would take, it means that such employer should have foreseen that failure to take the precaution would, more probably than not, substantially contribute towards injury: this is sufficient prima facie evidence." (emphasis added)
In my opinion in the context of Gardiner and McGhee there is little, if any, difference between a prima facie presumption and an inference."In my opinion, when a man who has not previously suffered from a disease contracts that disease after being subjected to conditions likely to cause it, and when he shows that it starts in a way typical of disease caused by such conditions, he establishes a prima facie presumption that his disease was caused by those conditions. I think that the facts proved in this case do establish such a presumption. That presumption could be displaced in many ways."
And Lord Salmon said, at pp 11H-12A:"The pursuer has after all, only to satisfy the court of a probability, not to demonstrate an irrefragable chain of causation, which in a case of dermatitis, in the present state of medical knowledge, he could probably never do."
I incline to the view that these statements by Lord Simon, Lord Kilbrandon and Lord Salmon point more to the drawing of an inference in a common sense way from the evidence than to the formulation of a principle of law."In the circumstances of the present case it seems to me unrealistic and contrary to ordinary common sense to hold that the negligence which materially increased the risk of injury did not materially contribute to causing the injury."
"the decision of this House may be taken as holding that in the circumstances of that case it was reasonable to infer that there was a relationship between contraction of dermatitis in these conditions and the absence of washing facilities and therefore it was reasonable to hold that absence of washing facilities was likely to have made a material contribution to the causation of the dermatitis."
"To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning."
I consider that this approach, whereby the layman applying broad common sense draws an inference which the doctors as scientific witnesses are not prepared to draw, is one which is permissible. In the United States Supreme Court in Sentilles v Inter-Caribbean Shipping Corporation 361 US 107 (1959) Brennan J stated, at p 109:"But where the layman is told by the doctors that the longer the brick dust remains on the body, the greater the risk of dermatitis, although the doctors cannot identify the process of causation scientifically, there seems to be nothing irrational in drawing the inference, as a matter of common sense, that the consecutive periods when brick dust remained on the body probably contributed cumulatively to the causation of the dermatitis."
"The jury's power to draw the inference that the aggravation of petitioner's tubercular condition, evident so shortly after the accident, was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause. Neither can it be impaired by the lack of medical unanimity as to the respective likelihood of the potential causes of the aggravation, or by the fact that other potential causes of the aggravation existed and were not conclusively negated by the proofs. The matter does not turn on the use of a particular form of words by the physicians in giving their testimony. The members of the jury, not the medical witnesses, were sworn to make a legal determination of the question of causation."
"Adopting that robust approach, my firm conclusion in this case is that the claimant's exposure to asbestos fibres in the employment of the two defendants, did materially contribute to, and so cause his mesothelioma. I reach that conclusion by a simple, direct process of reasoning, readily understandable to a layman. The claimant was exposed by each defendant and by both defendants, to asbestos fibres, in quantities sufficient greatly to increase his risk of contracting mesothelioma, on the evidence of Dr. Rudd, by up to a thousand times the general population risk. They owed him statutory and common law duties to take steps to minimise that risk. They failed to do so. He contracted the very disease against which it was their duty to take those steps.
In those circumstances, like Lord Reid in McGhee, I can see no substantial difference between saying that what the defendant did materially increased the risk of injury to the claimant and saying that what the defendants did made a material contribution to his injury. It seems to me wholly artificial to require a claimant to prove which fibre, or fibres, inhaled in whose employment in precisely what circumstances, caused or set off or contributed to the process by which one or more mesothelial cells became malignant. In principle, it is just as artificial as requiring proof in a case in which a pool of liquid, collected from separate sources, has caused injury, of precisely which molecule was the mechanical cause of injury. Even though the precise mechanism by which the claimant's mesothelioma was caused or set off cannot be established, those conclusions point, inexorably, to the finding that the defendants' breaches of duty materially contributed to his contracting the disease. In other words, the evidence which I have heard proves, on the balance of probabilities, that their breach of duty caused his injury."
"Two theories of causation emerge from an analysis of the speeches of the Lords in this case. The first, firmly espoused by Lord Wilberforce, is that the plaintiff need only prove that the defendant created a risk of harm and that the injury occurred within the area of the risk. The second is that in these circumstances, an inference of causation was warranted in that there is no practical difference between materially contributing to the risk of harm and materially contributing to the harm itself."
"McGhee v National Coal Board was considered by the House of Lords in Kay v Ayrshire and Arran Health Board [1987] 2 All ER 417; Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909, and Wilsher v Essex Area Health Authority [1988] 1 All ER 871. It is clear from those decisions that McGhee is not now, and never was, authority for the legally adventurous proposition that if a breach of duty is shown, and damage is proven within the area of risk that brought about the duty, and if the breach of duty materially increases the risk of damage of that type, then the onus of proof shifts from the plaintiff to the defendant to disprove the causal connection. That proposition could be derived only from the speech of Lord Wilberforce and it is now clear that it was never a binding principle emerging from the McGhee case.
But McGhee remains a worthwhile study. And there is a somewhat more cautious principle underlying the decision in that case. However, it is not an "onus" principle but an "inference" principle. ….
The "inference" principle derived from McGhee, and from the Canadian cases to which I have referred, is this: Where a breach of duty has occurred, and damage is shown to have arisen within the area of risk which brought the duty into being, and where the breach of duty materially increased the risk that damage of that type would occur, and where it is impossible, in a practical sense, for either party to lead evidence which would establish either that the breach of duty caused the loss or that it did not, then it is permissible to infer, as a matter of legal, though not necessarily logical, inference, that the material increase in risk arising from the breach of duty constituted a material contributing cause of the loss and as such a foundation for a finding of liability. ….
Whether the inference of causation should in fact be made in any particular case depends on whether it is in accordance with common sense and justice in that case to say that the breach of duty which materially increased the risk ought reasonably to be considered as having materially contributed to the loss."
"Has the failure to take those precautions been shown to have caused or materially contributed to the contracting of the disease by the appellant? It might be argued as a matter of strict logic, that the fact that given precautions would substantially diminish the risk, does not prove that failure to take those precautions materially contributed to the appellant's infection unless it can be established how that infection occurred. But the law's view of causation is less concerned with logical and philosophical considerations than with the need to produce a just result to the parties involved. Where a defendant is under a legal duty to take precautions to protect the plaintiff from the risk of contracting disease, and, by omitting those precautions, he substantially increases the risk of the plaintiff contracting that disease, the law treats that increase in risk as a sufficient basis, in the absence of evidence showing how the infection occurred, for an inference that the omission of the precautions materially contributed to the contracting of the disease. Justice requires such an approach to the problem of causation and it is the approach which was taken by the House of Lords in McGhee v National Coal Board."
"In refining the concept of legal cause we must also ensure that the triers of fact in asbestos-related cancer cases know the precise contours of the plaintiff's burden. The generally applicable standard instructions on causation are insufficient for this purpose. Those instructions tell the jury that every "substantial factor in bringing about an injury" is a legal cause (BAJI No. 3.76), even when more than one such factor "contributes concurrently as a cause of the injury" (BAJI No. 3.77). They say nothing, however, to inform the jury that, in asbestos-related cancer cases, a particular asbestos-containing product is deemed to be a substantial factor in bringing about the injury if its contribution to the plaintiff or decedent's risk or probability of developing cancer was substantial.
Without such guidance, a juror might well conclude that the plaintiff needed to prove that fibers from the defendant's product were a substantial factor actually contributing to the development of the plaintiff's or decedent's cancer. In many cases, such a burden will be medically impossible to sustain, even with the greatest possible effort by the plaintiff, because of irreducible uncertainty regarding the cellular formation of an asbestos-related cancer. We therefore hold that, in the trial of an asbestos-related cancer case, although no instruction "shifting the burden of proof as to causation" to defendant is warranted, the jury should be told that the plaintiff's or decedent's exposure to a particular product was a substantial factor in causing or bringing about the disease if in reasonable medical probability it was a substantial factor contributing to plaintiff's or decedent's risk of developing cancer."
"Re-examined by MR HOGARTH
MR HOGARTH: (To the witness) Dr Rudd, you are (inaudible) deal with the situation (?) put to you by Mr Stewart, where he suggested that if you assume that there are two equal exposers it is impossible to say which one produced or exposed to the fatal fibre. Can you say that one or other, or both?
A. It's not possible to say it was one or another, or both. It could have been one. It could have been the other. It could have been both if there was more than one fibre involved.
Q. It has to be one, or the other, or both?
A. What is known for certain is that together they were responsible for the malignant transformation. The situation is analogous to causation of lung cancer by cigarette smoking. The cigarette smoke causes a [series] of mutations which, together, give rise to the lung cancer. One could say, theoretically, that last mutation was caused by a molecule of tar from one cigarette, but it would not be in accordance with common sense to suggest that the man who had smoked for thirty years and developed lung cancer got it as a result of smoking one cigarette rather than another. The cancer is the end result of the sum total of smoking. Mesothelioma is the end result of the sum total of asbestos exposure.
Cross-examined by MR STEWART
MR STEWART: My Lord, I am a little concerned your Lordship may possibly be misled by that last answer. I wonder if I may clarify it? (To the witness) Dr Rudd, that last statement, that it is the sum total of the exposure to asbestos, is strictly on the hypothesis that more (inaudible) which was not proven that as asbestos fibres, as opposed to one asbestos fibre, is more likely to have caused it?
A. It's a statement based upon the facts which can be known with certainty. The facts which can be known with certainty are that asbestos causes mesothelioma. The risk that mesothelioma will occur increases with the quantity of asbestos inhaled. Mr Fairchild was exposed to a quantity of asbestos from various sources. As a result, he developed mesothelioma. The rest is speculation.
Q. You are not, I assume, [resiling from] the fact that you agreed that it is possible that the risk lies with exposure simply because each fibre has a chance in initiating the fatal (?) mutation?
A. That's possible.
Q. That is equally likely, as you said before, that it is the one fibre out of all those millions that it is equally likely to be that, as more than one fibre?
I consider that the common sense view expressed by Dr Rudd is the one which a court should take and is in conformity with the opinion of Lord Reid in McGhee, at p 5B, that the issue of causation in cases such as these should be assessed from a broad and practical viewpoint.A. Yes, we're moving on to mechanisms, now, as opposed to observable facts."
This view is also well put by Lambert JA in Haag v Marshall, at p 379:"And if one asks which of the parties, the workman or the employers, should suffer from this inherent evidential difficulty, the answer as a matter of policy or justice should be that it is the creator of the risk who, ex hypothesi must be taken to have foreseen the possibility of damage, who should bear its consequences."
"as between an innocent plaintiff and a defendant who has committed a breach of duty to the plaintiff and by so doing materially increased the risk of loss to the plaintiff, in a situation where it is impossible, as a practical matter, to prove whether the breach of duty caused the loss, it is more in keeping with a common sense approach to causation as a tool of justice, to let the liability fall on the defendant."
For the reasons which I have given I am unable, with respect, to agree with the opinion of the Court of Appeal that the claimants were unable to prove on the balance of probabilities that there was a causative relationship between a period of employment during which there was exposure to asbestos dust at the onset of the disease. The Court of Appeal also stated, at pp 1080-1081, in para 104:"the claimant is wholly unable to prove on the balance of probabilities that that period of employment had any causative relationship with the inception of the disease. This is far too weighty an edifice to build on the slender foundations of McGhee v National Coal Board [1973] 1 WLR 1, and Lord Bridge has told us in Wilsher v Essex Area Health Authority [1988] AC 1074 that McGhee established no new principle of law at all. If we were to accede to the claimants' arguments, we would be distorting the law to accommodate the exigencies of a very hard case. We would be yielding to a contention that all those who have suffered injury after being exposed to a risk of that injury from which someone else should have protected them should be able to recover compensation even when they are quite unable to prove who was the culprit."
I am unable to agree with this view because I consider that where there is only one causative agent (in this case asbestos dust) the McGhee principle can apply notwithstanding that there are a number of tortfeasors."In our judgment, what Lord Reid said in McGhee [1973] 1 WLR 1, at pp 4G to 5B, in the passage of his speech which forms the basis of Mr Langstaff's argument, must be read in the context of that case. There was only one causative agent, brick dust, and only one possible tortfeasor, Mr McGhee's employer. In that situation Lord Reid was prepared to find causation established in the absence of scientific proof. Lord Bridge in Wilsher has made it clear that the same technique cannot be used where there is more than one causative agent. It seems to us that for the same reasons the same technique cannot be used where there is more than one tortfeasor, unless of course the evidence establishes, on the balance of probabilities, that the disease was caused by cumulative exposure."
LORD RODGER OF EARLSFERRYMy Lords,
"it could not be said whether a single fibre of asbestos was more or less likely to have caused the disease, alternatively whether more than one fibre was more or less likely to have caused the disease. In the latter event, it could not be shown that it was more likely than not that those fibres came from more than one source. In other words, none of these scenarios could be proved on the balance of probabilities. Similarly, it could not be proved on the balance of probabilities that any one man's mesothelioma was caused cumulatively by exposure to asbestos dust in more than one employment."
He went on, however, to hold that the pursuer did not need to show that the dust from the swing grinders had been the sole source of his illness. It appeared to Lord Reid ([1956] AC 613, 621) that:"In my judgment, the employee must in all cases prove his case by the ordinary standard of proof in civil actions: he must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury."
Lord Keith of Avonholm observed ([1956] AC 613, 626):"the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material."
The House held that it had been established that the swing grinders had indeed contributed a quota of dust that was not negligible and that they had therefore helped to produce his disease. On that footing the House dismissed the appeal."It was the atmosphere inhaled by the pursuer that caused his illness and it is impossible, in my opinion, to resolve the components of that atmosphere into particles caused by the fault of the defenders and particles not caused by the fault of the defenders, as if they were separate and independent factors in his illness, as if they were separate and independent factors in his illness. Prima facie the particles are acting cumulatively, and I think the natural inference is that had it not been for the cumulative effect the pursuer would not have developed pneumoconiosis when he did and might not have developed it at all."
Similarly, in Craig v Glasgow Corporation 1919 SC(HL) 1, 6 where the pursuer sought damages for personal injuries caused by a tramcar driven by one of the defenders' employees, Lord Buckmaster said:"some negligent act or omission on the part of the company or their servants which materially contributed to the injury or death complained of…. Mere allegation or proof that the company were guilty of negligence is altogether irrelevant; they might be guilty of many negligent acts or omissions, which might possibly have occasioned injury to somebody, but had no connection whatever with the injury for which redress is sought, and therefore the plaintiff must allege and prove, not merely that they were negligent, but that their negligence caused or materially contributed to the injury."
"It is a common and familiar principle that in an action seeking such relief it is incumbent upon the pursuer to prove both that the defenders were guilty of negligence, and that such negligence caused, or materially contributed to, the injuries received."
Viscount Simonds thus firmly adhered to the decision in Wardlaw, that there could be no question of reversing the burden of proof which lay on a pursuer to establish the necessary causal link between the employer's default and his illness. Nevertheless, he considered that, where a statutory provision prescribed a system of ventilation to remove elements in the atmosphere that might be injurious to health and the employer had no ventilation or only an inadequate system, these factors were relevant in considering how much more the pursuer required to prove in order to establish the causal link between the employer's default and the pursuer's disease due to noxious dust. In other words, these factors were relevant to what or how much the pursuer had to prove in order to establish the causal link, rather than to the attitude that the court should take when assessing the evidence adduced for that purpose. Viscount Simonds went on to consider whether it was practicable for the defenders to have provided a better system of ventilation. He concluded that it was. Therefore the dust containing dangerous particles had hung about in the air in a concentrated form for longer than it would have done if there had been that better system of ventilation. He continued ([1957] 1 WLR 613, 620):"My Lords, I do not think that it can be wrong to approach this question from the angle that, if the statute prescribes a proper system of ventilation by the circulation of fresh air so as to render harmless, so far as practicable, all fumes, dust and other impurities that may be injurious to health, generated in the course of work carried on in the factory, and if it is proved that there is no system or only an inadequate system of ventilation, it requires little further to establish a causal link between that default and the illness, due to noxious dust, of a person employed in the shop. Something is required as was held in Wardlaw's case. I was a party to that decision and would not in any way resile from it. But it must not be pressed too far. In the present case there was, in my opinion, ample evidence to support the appellants' case. The appellants rightly or wrongly by their pleadings assumed the burden not only of proving that there was a causal link between default and disease but also of proving that it was practicable for the respondents to have reduced the risk by the provision of additional roof ventilators and openings in the walls for the admission of fresh air."
"It follows that owing to the default of the respondents the deceased was exposed to a greater degree of risk than he should have been, and, though it is impossible, even approximately, to quantify the particles of dust which he must, in any event, have inhaled and those which he inhaled but need not have, I cannot regard the excess as something so negligible that the maxim 'de minimis' is applicable. Accordingly, following the decision in Wardlaw's case, I must hold the respondents liable."
"The respondents are admittedly not to blame for the generation of this cloud, but any failure to provide proper ventilation must, I think, lengthen the period during which the cloud remains intense. It seems to me to follow that the respondents' failure to provide adequate ventilation must increase the risk to which the workmen are exposed. Reading the evidence as a whole, I think it establishes that (to use the language of Lord Reid in Wardlaw's case) 'on a balance of probabilities the breach of duty caused or materially contributed to' the injury."
As Lord Simon noted, Lord Kilbrandon accepted that argument. He did so towards the end of his opinion (1961 SC(HL) 1, 4):"that the washing facilities which were provided were inadequate and primitive, and that, if they had been up to standard, the risk of dermatitis would have been very much reduced."
It appears, however, that, both when recording the argument and when giving his decision on it, Lord Kilbrandon was concerned with fault rather than with causation, since he had already held (1961 SC(HL) 1, 3), on the basis of the dermatologists' evidence, that the pursuer had established the necessary causal link between his work with the defenders and the onset of his dermatitis. In these later passages Lord Kilbrandon seems to have been making the point that the defenders' failure to provide adequate washing facilities amounted to legally relevant fault where it was foreseeable that this would lead to an enhanced risk of dermatitis."In my opinion, the defenders neglected to supply reasonable washing facilities in the circumstances, and thereby exposed the pursuer to an enhanced risk of contracting industrial dermatitis. They are accordingly liable to him in damages."
The final averments in this passage relate, of course, to the alleged failure by the defenders to perform all the common law duties averred by the pursuer, including those that the Lord Ordinary had rejected. The Lord Ordinary held that the pursuer had indeed contracted his dermatitis in the course of his work in the brick kiln and as a result of his exposure to dust and ashes there (1973 SC(HL) 37, 39). He also held that the defenders were at fault in not providing showers but that the pursuer had failed to prove on the balance of probabilities that this fault on the part of the defenders had caused or materially contributed to his injury (1973 SC(HL) 37, 42 - 43). Lord Kissen put the point in this way:"It was their duty to take reasonable care to provide adequate washing facilities including showers, soap and towels to enable men to remove dust from their bodies. In each and all of said duties the defenders failed and so caused said disease. Had the defenders fulfilled said duties incumbent on them the pursuer would not have contracted said disease."
"Dr Hannay's evidence was that he could not say that the provision of showers would probably have prevented the disease. He said that it would have reduced the risk materially but he would not go further than that. Dr Ferguson said that washing reduces the risk. Pursuer's counsel maintained that a material increase in the risk of contracting a disease was the same as a material contribution to contracting the disease and that Dr Hannay established this by his evidence. I think that defenders' counsel was correct when he said that the distinction drawn by Dr Hannay was correct and that an increase in risk did not necessarily mean a material contribution to the contracting of the disease. The two concepts are entirely different. A material increase in risk may refer only to possibilities and may not make a possibility into a probability. It may strengthen the possibility but that cannot mean that in all such cases the possibility has become a probability. What the pursuer has to show is that, as he avers, he would not have contracted the disease but for the defenders' breach of duty. He has to show that this was probable and the degrees of risk have no relevance unless they make the contraction of the disease more probable than not contracting the disease. He cannot succeed if the only inference from the evidence is that lack of shower baths is a possibility as a cause of his having contracted the disease and that the provision of shower baths would have increased the possibility but not made it a probability. That is the only inference which I can draw from Dr Hannay's evidence and that was the best evidence for the pursuer. Causal connection between fault and the contraction of the disease has not been established" (emphasis added).
"Even if the pursuer had established (as he did not) that the absence of washing facilities increased the risk of the pursuer getting dermatitis, that would clearly not prove that the absence of these facilities caused the disease, nor indeed would it go any distance towards proving it. For risk of dermatitis and causation of dermatitis are two quite separate matters."
"It suggests to me that there are two possible ways. It may be that an accumulation of minor abrasions of the horny layer of the skin is a necessary precondition for the onset of the disease. Or it may be that the disease starts at one particular abrasion and then spreads, so that multiplication of abrasions merely increases the number of places where the disease can start and in that way increases the risk of its occurrence.
In this passage Lord Reid goes into more of the detail of the medical evidence than either the Lord Ordinary or the First Division. From what he says here and elsewhere ([1973] 1 WLR 1, 3G) it is clear, of course, that the pursuer's condition would not have developed but for his work in the kiln. It was there that he was exposed to the heat that made him sweat profusely and so softened his skin and made it easily injured. It was there also that he was exposed to the cloud of brick dust, with the result that the particles adhered to his skin. Exertion then caused the dust to injure the horny layer of his skin and so exposed the tender cells below to injury or infection. The most significant exertion would, presumably, have occurred while the pursuer was working in the kiln, pulling out the bricks. But the pursuer would also have exerted himself while cycling home and, perhaps, when he got home. So any abrasions on his softened skin could have been caused either by the exertion in the kiln or else by the exertion during his ride home or by a combination of the two. For the consequences of the exertion in the kiln alone the defenders would not have been liable since they were not at fault in that respect. For the consequences of the exertion during his cycle ride, the defenders would, on the other hand, have been liable since the pursuer would not have been open to injury due to dust on his skin at that stage if the defenders had fulfilled their duty to provide showers.I am inclined to think that the evidence points to the former view. But in a field where so little appears to be known with certainty I could not say that it is proved. If it were, then this case would be indistinguishable from Wardlaw's case."
"But I think that in cases like this we must take a broader view of causation. 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 that this disease might develop. It does not and could not explain just why that is so. But experience shows that it is so. Plainly that must be because what happens while the man remains unwashed can have a causative effect, though just how the cause operates is uncertain. I cannot accept the view expressed in the Inner House that once the man left the brick kiln he left behind the causes which made him liable to develop dermatitis. That seems to me quite inconsistent with a proper interpretation of the medical evidence. Nor can I accept the distinction drawn by the Lord Ordinary between materially increasing the risk that the disease will occur and making a material contribution to its occurrence.
Lord Reid holds that, even though the evidence leaves open the two possible causes of his illness, the pursuer succeeds because the court takes a broader view of causation. There is nothing whatever to suggest that, in reaching this conclusion, Lord Reid was simply adopting a robust and pragmatic approach to the primary facts and holding that it could somehow be inferred - in the face of the expert evidence which he had just narrated and which gave rise to the very problem that had to be resolved - that, if the pursuer's dermatitis was caused by a single abrasion, that particular abrasion was caused by his exertion while riding home. What Lord Reid does, rather, is to accept that the pursuer must prove that the defender's conduct materially contributed to the onset of his illness but also, like Viscount Simonds and Lord Cohen in Nicholson, he considers what it is that the pursuer must prove in order to establish that material contribution. Taking the "broader view of causation", he holds that, in these particular circumstances, there is no substantial difference between saying that what the defenders did materially increased the risk of injury to the pursuer and saying that it made a material contribution to his injury. This is his decision on the point of law posed in the case. Proof that the defenders' failure to provide showers had materially increased the risk that the pursuer would develop dermatitis would therefore be, as a matter of law, sufficient to prove that the defenders had materially contributed to the onset of his condition. And, of course, the pursuer had actually proved that their failure had increased that risk. Lord Reid accordingly allowed the appeal.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 everyday 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."
145. Lord Bridge, with whom the other members of the House agreed, said ([1988] AC 1074, 1088A - B) that in McGhee
Lord Bridge then quoted the relevant passages from the speeches of their Lordships, apart from Lord Wilberforce, in McGhee and went on ([1988] AC 1074, 1090):"the consecutive periods when 'innocent' and 'guilty" brick dust was present on the pursuer's body may both have contributed to the cause of the disease or, theoretically at least, one or other may have been the sole cause. But where the layman is told by the doctors that the longer the brick dust remains on the body, the greater the risk of dermatitis, although the doctors cannot identify the process of causation scientifically, there seems to me to be nothing irrational in drawing the inference, as a matter of common sense, that the consecutive periods when brick dust remained on the body probably contributed cumulatively to the causation of the dermatitis. I believe that a process of inferential reasoning on these general lines underlies the decision of the majority in McGhee's case."
In the present case the Court of Appeal naturally had regard to what Lord Bridge said in this passage: [2002] 1 WLR 1052, 1080F - G, para 103."The conclusion I draw from these passages is that McGhee v National Coal Board [1973] 1 WLR 1 laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders' negligence had materially contributed to the pursuer's injury. The decision, in my opinion, is of no greater significance than that and to attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one."
"In the McGhee case there was only one risk operating, namely that contact of a sweaty skin with brick dust would lead to dermatitis. The fact that such contact did cause the injury was not in dispute. Just as in Bonnington Castings Ltd v Wardlaw [1956] AC 613 the defenders' fault lay in not taking proper steps to reduce that single risk. The uncertainty was whether the fault had tipped the scale. In the present case there is a greater uncertainty. Instead of a single risk factor known to have caused the injury there is a list of factors, which cannot be fully enumerated in the current state of medical science, any one of which might have caused the injury. What the defendants did was not to enhance the risk that the known factor would lead to injury, but to add to the list of factors which might do so. I acknowledge that this is much further from the facts of Bonnington Castings Ltd v Wardlaw, which was the springboard for the McGhee case than were the facts of the McGhee case itself.
The question is whether this makes a crucial difference. The root of the problem lies in the fact that, for reasons of policy, their Lordships'House mitigated the rigour of the rule that the plaintiff must prove that the breach caused the loss, in the interests of achieving a result which was considered to be just. Given that this was a decision based on policy, rather than a chain of direct reasoning, the difficulty is to know whether a similar approach can properly be adopted in the different circumstances of the present case. After much hesitation I have come to the conclusion that it can. Reading all the speeches together, the principle applied by the House seems to me to amount to this. If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue; and if the two parties stand in such a relationship that the one party owes a duty not to conduct himself in that way; and if the first party does conduct himself in that way, and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained. If this is the right analysis, it seems to me that the shape taken by the enhancement of the risk ought not to be of crucial significance. In the McGhee case [1973] 1 WLR 1, the conduct of the employers made it more likely that the pursuer would contract dermatitis, and he did contract dermatitis. Here, the conduct of those for whom the defendants are liable made it more likely that Martin would contract RLF, and he did contract RLF. If considerations of justice demanded that the pursuer succeed in the one case, I can see no reason why the plaintiff should not succeed in the other."
Having stated the issues in Wilsher, the Vice-Chancellor continued:"In the McGhee case there was no doubt that the pursuer's dermatitis was physically caused by brick dust: the only question was whether the continued presence of such brick dust on the pursuer's skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz, brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust."
"The position, to my mind, is wholly different from that in the McGhee case [1973] 1 WLR 1, where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. 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 old translation in C H Monro, The Digest of Justinian vol 2 (1909), pp 140-141 is reliable, with the addition of the words in square brackets:"idque est consequens auctoritati veterum qui, cum a pluribus idem servus ita vulneratus esset ut non appareret cuius ictu perisset, omnes lege Aquilia teneri iudicaverunt."
The text does not state expressly whether the case involved a concerted attack or simply a series of blows inflicted by different people, perhaps at different times. But the context of this particular passage, at least as preserved by Justinian's compilers, would suggest that, even if the case involves a concerted attack, Julian is thinking in terms of the liability of the participants as individuals, striking their own separate blows. Otherwise, Julian would not quote it as support for his view on a case which plainly involved blows delivered by different people in the course of quite separate attacks. In any event, the underlying doctrine must be that, in the kind of attack in question, in principle only the actual person who kills the slave is liable for killing. Were that not so, the old jurists would not have needed to make this special ruling that all the participants are liable under the lex Aquilia for killing the slave when it is unclear whose blow actually killed him. The reason for the ruling was, obviously, to make the statutory remedy of damages under chapter 1 available to the owner of the slave in these circumstances."This is in keeping with the view handed down from the old lawyers, who, where the same slave was wounded by several persons under such circumstances that it did not appear by whose hand it was that he died, came to the conclusion that they were all liable [under the lex Aquilia]."
Again the translation by Monro, The Digest of Justinian vol 2, pp 121 - 122 is satisfactory for present purposes, with the omission of the word in square brackets:"sed si plures servum percusserint, utrum omnes quasi occiderint teneantur, videamus. et si quidem apparet, cuius ictu perierit, ille quasi occiderit tenetur: quod si non apparet, omnes quasi occiderint teneri Iulianus ait, et si cum uno agatur, ceteri non liberantur: nam ex lege Aquilia quod alius praestitit, alium non relevat, cum sit poena."
Ulpian considers whether, if several people strike a slave, all of them are liable for killing him. He says that, if it is clear who struck the blow from which the slave died, that person is liable for killing him. But he reports Julian's view that, if this is not clear, then all of them are liable for killing him. Again the precise factual situation is not spelled out, but it looks as if Ulpian is considering the case of an attack on the slave by several people at once. Since only the actual person whose blow killed the slave is liable if his identity is known, Ulpian must, however, be thinking primarily in terms of the individual liability of the person who does the killing: it is only if you cannot tell whose blow proved fatal that Julian holds that all are liable for killing the slave. A separate rule is adopted for that situation."But if a number of persons struck him, it is a point to consider whether all are not liable, as having [all] killed him. As to this, if it is known who struck the fatal blow, that one is liable, as having killed him; but, if it is not known, then, according to Julianus, all are liable, as having slain, and if an action is brought against one, this does not release the others, because, under the lex Aquilia, payment by one man is no discharge to another, as it is a case of penal damages."
The judge considered the standard jury instructions but commented (67 Cal Rptr 2d 16, 32):"Plaintiffs cannot be expected to prove the scientifically unknown details of carcinogenesis, or trace the unknowable path of a given asbestos fiber. But the impossibility of such proof does not dictate use of a burden shift. Instead, we can bridge this gap in the humanly knowable by holding that plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff's exposure to defendant's asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant's particular product were the ones, or among the ones, that actually produced the malignant growth."
"They say nothing, however, to inform the jury that, in asbestos-related cancer cases, a particular asbestos-containing product is deemed to be a substantial factor in bringing about the injury if its contribution to the plaintiff or decedent's risk or probability of developing cancer was substantial.
Without such guidance, a juror might well conclude that the plaintiff needed to prove that fibers from the defendant's product were a substantial factor actually contributing to the development of the plaintiff's or decedent's cancer. In many cases, such a burden will be medically impossible to sustain, even with the greatest possible effort by the plaintiff, because of irreducible uncertainty regarding the cellular formation of an asbestos-related cancer. We therefore hold that, in the trial of an asbestos-related cancer case, although no instruction 'shifting the burden of proof as to causation' to defendant is warranted, the jury should be told that the plaintiff's or decedent's exposure to a particular product was a substantial factor in causing or bringing about the disease if in reasonable medical probability it was a substantial factor contributing to plaintiff's or decedent's risk of developing cancer."
The translation is:"Haben mehrere durch eine gemeinschaftlich begangene unerlaubte Handlung einen Schaden verursacht, so ist jeder für den Schaden verantwortlich. Das Gleiche gilt, wenn sich nicht ermitteln lässt, wer von mehreren Beteiligten den Schaden durch seine Handlung verursacht hat."
The mere fact that the draftsmen of the Code identified the need for a general provision of this type shows that the problem of injury caused by unidentified wrongdoers was thought to be of some significance. It is, moreover, a problem that is not necessarily to be solved simply by leaving the loss to lie on the victim. On the other hand, it is equally plain that in Germany the policy is to resolve such difficulties in favour of the claimant on a wide front and, therefore, to do so in many cases where the law in this country would simply hold that he had failed to prove his case. See, for instance, Motive zu dem Entwurfe eines Bürgerlichen Gesetzbuches für das Deutsche Reich (1888) vol 2, p 738. That reflects the particular policy choice of German law, which the courts articulate: BGHZ 25, 271, 274; OLG München MDR 1967, 671, 672. A good example of this more extensive approach is the case of the lady who fell on an uneven surface and could not establish whether the precise place where she fell was on an unfinished street belonging to the local authority or on land belonging to an individual. The Bundesgerichtshof held that the provision in Article 830(1) applied and allowed her to recover damages against the individual: BGHZ 25, 271; van Gerven, Tort Law, pp 444 - 445."If several persons have caused damage by an unlawful act committed in common, each is responsible for the damage. The same rule applies if it cannot be discovered which of several participants has caused the damage by his act."