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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: [2002] Lloyds Rep Med 361, [2002] 3 All ER 305, [2003] 1 AC 32, [2002] PIQR P28, (2002) 67 BMLR 90, [2002] UKHL 22, [2002] Lloyd's Rep Med 361, [2002] 3 WLR 89, [2002] ICR 798 |
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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,