Legal principles - causation
Jonathan Edwards
Partner, BLM London
business services construction & property insurance & indemnity leisure media & technology public sector retail transport
The ordinary test for causation in tort
The but-for test:
The claimant must prove that the damage would not
have occurred but for the defendant’s wrongdoing.
Chronic pain cases are subject to the
usual rules of causation
Lord Lloyd:
'it would not be sensible to commit the law to a
distinction between physical and psychiatric injury,
which may already seem somewhat artificial, and
may soon be altogether outmoded. Nothing will be
gained by treating them as different 'kinds' of
personal injury, so as to require the application of
different tests in law'.
Page v Smith (1995) (HL)
The need for 'special rules':
Lord Bingham:
'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'.
Fairchild v Glenhaven (2003) (HL)
Bonnington Castings v Wardlaw (1956)
(HL)
The material contribution test:
1.
The claimant must prove that the defendant’s
wrongdoing materially contributed to the injury.
2.
To be material: contribution must be above a
minimal amount.
McGhee v National Coal Board (1973)
(HL)
The material increase in risk test:
n
Removes the need to prove that the defendant
caused or contributed to the injury. Simply
requires proof that a 'material' risk arose from the
breach.
n
Only applies where a lack of scientific
understanding means it is impossible to prove
that the wrongdoing either did or did not cause
the injury.
Wilsher v Essex Area Health Authority
(1988) (HL)
E not liable under material increase in risk test.
1.
2.
The test only applies where one type of causative
agent is involved
•
Affirmed in Barker v Corus (2006)
Lord Bridge: 'McGhee laid down no new principle
of law whatsoever'
•
For him material increase in risk = material
contribution
•
HL disagrees in Fairchild v Glenhaven
(2003)
Fairchild v Glenhaven (2003) (HL)
n
n
n
F couldn’t prove where which of 3 employers
caused his mesothelioma
HL decides each employer can be sued for
materially increasing the risk
Extends causation liability even further
• Baroness Hale: 'For the first time in our legal
history, persons are made liable for damage
even though they may not have caused it at all,
simply because they have materially contributed
to the risk of causing that damage'.
Pearce v Lindfield (2003) (CA)
n
n
n
n
P had 3 separate accidents (in 9 months!) where
other driver at fault
She developed chronic pain in her neck and back
Medical evidence showed each accident had
'cumulative effect’
Each defendant liable for materially contributing to
chronic pain.
No apportionment - risk of injustice:
D1: Minor
contribution
to harm
D2 (insolvent
company):
major
contribution
to harm
Joint and
several
liability
D1 liable for
full damages
How apportionment restores justice:
D1: minor
contribution
to harm
D2 (insolvent
company):
major
contribution
to harm
D1: liable for
proportionate
amount only
Damages
apportioned
according to
contribution
No recovery
for claimant
When can apportionment happen?
n
n
Where injuries are divisible
For indivisible injuries, where the material increase
in risk test is used
• Barker v Corus (2006) (HL)
• Lord Hoffman: 'the damage which the defendant
should be regarded as having caused is the
creation of a risk or chance. […] It does not
matter that the disease as such would be
indivisible damage. Chances are infinitely
divisible and different people can be separately
responsible to a greater or lesser degree'.
But there is controversy where defendants are liable
for materially contributing to an indivisible injury…
Against apportionment:
n Dickins v O2 (2009) (CA)
• Smith LJ: 'My provisional view…where it is not
scientifically possible to say how much a material
contribution is…and where the injury to which it
has lead is indivisible, it will be inappropriate to
apportion damages across the board'.
n
Tony Weir, Introduction to Tort (1st edn)…
For apportionment:
Holtby v Brigham & Cowan (2000) (CA)
n Stuart-Smith LJ: 'strictly speaking the defendant is
only liable to the extent of his contribution'.
Rahman v Arearose (2001) (CA)
n Laws LJ: 'What justice demands is that the court
should make the best estimate it can, …making the
fullest allowances in favour of the claimants for any
uncertainties'.
Hatton v Sutherland (2002) (CA)
Hale LJ:
'…if it is established that the constellation of
symptoms suffered by the claimant stems from a
number of extrinsic causes then in our view a
sensible attempt should be made to apportion
liability accordingly'.
Conclusions
1.
2.
Chronic pain cases will be subject to the claimantfriendly tests which reduce the evidential burden
the claimant is required to establish.
Against this the courts are developing a principle
of apportionment whereby the exposure of
defendants will be proportionate to the damage
they cause.