Tort Law Ch5

• I. Factual causation
• 1. The But-For Test
• Case
• 2. Challenges to the Orthodox But-For Approach
• a) Loss of a Chance
• Case *2
• b) Material Contribution to injury
• Case
• c) Material Contribution to Risk
• Case *3
• 3. Multiple Sufficient Causes
• Case*2

• II. Intervening Acts
• Case *2

• III. Remoteness
• 1. Wagon Mound and the Scope of Risk Approach
• Case*2
• 2. Policy - Based Limitations on liability
• Case

The first stage: Recognition of a liability for the employer’s ‘materialcontribution’ to the employee’s injury

The second stage: For the House of Lords to apply the ‘material contribution’ test incases where the medical evidence could not say whether the claimant’s injurywas caused by a cumulative process or a discrete one-off exposure for which thedefendant may or may not be responsible.

• E.g (of 2nd stage).
• Mcghee v National Coal Board;
• Fairchild v Glenhaven FuneralServices Ltd;
• Barker v Corus UK Ltd.

• o The pursuer complained that after working in D’s workshop for eight
• yrs & contracted pneumoconiosis as a result
• of inhalation of silicone dust.

• o The Dust: two sources
• 1. Created by the operation of a pneumatic hammer & D not negligent with respect to this source
• 2. Caused by the workings of the D’s swing grinders à becoz of not properly maintenance & D were negligent and inbreach of statutory duty with respect to the dust from this source.

Results: Appeal dismissed, the pursuer recovered full damages.

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 further to hold that it can be inferred from the enactment of a duty that Parliament intended that any employees 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 ==> the employee must prove that the breach of duty caused, or materially contributed to his injury.

Whether the dust from the swing grinders materially contributed to the disease, not which was the more probable source of the respondent's disease.

An exception that any contribution comeswithin this exception is not material (i.e. any contribution which does notfall within that exception must be material)

• Where the claimant develops a disease as a result of cumulative
• exposure to a noxious substance, only part of which is attributable to the
• defendant’s breach of duty, it is not necessary to demonstrate that he would
• not have suffered the disease at all but for the breach.

• He need only prove that the breach of duty made a ‘material
• contribution’ which Lord Reid defines as a contribution falling outside the de minimis range.

Recent confirmation of this analysis: Bailey v Ministry of Defence [2009]1 WLR 1052

• Recent rulings – proportionate damges:
• C of A ruled: C in such a case is entitled only to proportionatedamages reflecting the extent of the D’s wrongful contribution to the disease.

• Cases:
• Holtby v Brigham & Cowan (Hull) Ltd [2003] 3 All ER 421
• Allen v British Rail Engineering [2001] PIQR Q10

• The proportionate damages may be awarded only where the claimant’sinjury is ‘divisible’.
• Example that is clear: where there are two wholly different injuries, e.g. D1 breaks C's arm and D2 breaks his leg.

Case example: Holtby v Brigham & Cowan (Hull) Ltd [2003] 3 All ER 421

Holtby's case: in the case that cumulative exposure to a harmful substance causes a single condition --> it gets progressively worse the longer the exposure lasts --> the court throw the responsibility onto C --> if he is to get compensation for the whole of his loss, he must sue, and recover against all those who contributed to the injury.

Wardlaw's : an 'innocent' factor has contributed to the injury.

It seems to follow that the C's damages cannot exceed that proportion of his loss that is attributable to the guilty cause.

• Rahman v Arearose Ltd [2001] QB 351
• Barker v Corus (UK) Ltd [2006] 2 AC 572

• C beaten up in workplace that his employer was held responsible.
• When arrived in hospital C received negligent treatment leading blindness in
• right eye. Various psychiatric disorders developed.

Each defendant was liable for some harm.

The question was how far each liability should extend

• This approach was approved in Hatton v Sutherland [2002] ICR 613
• - Work related stress --> could have several different causes.
• - Hale LJ: in principle a wrongdoer should pay only for that proportion of the harm suffered for which he by his wrongdoing is responsible".

• McGhee v National Coal Board [1973] 1 WLR 1
• Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32
• Barker v Corus UK Ltd [2006] 2 AC 572

• o D in breach of duty failed to provide adequate washing facilities (negligent) --> C
• forced to bicycle home before the dust could be removed à C suffer dermatitis.

• o The medical evidence could not say whether the prolonged exposure to
• the dust had caused the dermatitis --> but do added
• materially to the risk that C might develop the disease.

Two of the claimants lost at first instance on the basis that they had not established on the balance of probabilities the precise source of the asbestos causing their disease, whilst the third was successful on the basis that the defendant employer's negligence had materially contributed to the mesothelioma.

It did so because, applying the conventional 'but for' test of tortious liability, it could not be held that C had proved against A/B/or A&B that his mesothelioma would probably not have occurred but for the breach of duty by A/ B/ or A& B.