Case Notes: Breach of Duty (Week 4)
The test for a breach of duty will essentially be one of practical considerations, in reference to
the hypothetical practice of a reasonable person. Yet the questions of the risk run by
defendants have caused the courts to start considering statistical questions. The question is
thus put as to whether the foreseeability of a claimant’s injury was ‘reasonable’, per some
absolute standard.
In reality, there is an inquiry into the content of the duty of care, as opposed to its existence.
Bolton v Stone [1951] AC 850
Miss Stone was injured when a cricket ball hit by a batsman for Cheetham Cricket Club
struck her. Evidence suggested that balls had only been hit out of the field 6 times in 30 years.
Stone sued the members of the club, claiming negligence and nuisance in not taking care to
avoid balls being hit out of their grounds. The negligence issue was before the House of
Lords.
Held: The members of the club were not liable in damages to the injured person, whether on
the ground of negligence or nuisance. The principal arguments were based upon the issue of
whether it would be reasonable, and not negligible a risk that someone would get hit by a
cricket ball. There were no real discussions of probability. Analogies with the risks involved
with driving a car were made with walking alongside the road next to a cricket ground.
Lord Porter: The quantum of danger must always be a question of degree. It is not enough
that there is a remote possibility that injury may occur: the question is, would a reasonable
man anticipate it?
Lord Oaksey: There are many footpaths and highways adjacent to cricket grounds and golf
courses on to which cricket and golf balls are occasionally driven, but such risks are
habitually treated both by the owners and committees of such cricket and golf courses and by
the pedestrians who use the adjacent footpaths and highways as negligible.
Lord Reid: My Lords, it was readily foreseeable that an accident such as befell the
respondent might possibly occur during one of the appellants' cricket matches. On the other
hand it was plain that the chance of that happening was small. In my judgment the test to be
applied here is whether the risk of damage to a person on the road was so small that a
reasonable man in the position of the appellants, considering the matter from the point of
view of safety, would have thought it right to refrain from taking steps to prevent the danger.
Haley v London Electricity Board [1965] AC 778
Facts: The respondents were electricity undertakers and pursuant to their statutory powers
had excavated a trench along a pavement in a London suburb. Their servants, to guard the
trench and to prevent persons walking along the pavement, had put a punner-hammer across
the pavement, the long handle of which stretched across the pavement and rested some two
feet above the ground on some railings. The appellant was blind, his stick missed the sloping
punner-hammer, he tripped and fell. As a result of his accident he was rendered almost totally
deaf. His claim in negligence was successful.
Summary: that it was the duty of those who engaged in operations on the pavement of a
highway to take reasonable care not to act in a way likely to endanger other persons who
might reasonably be expected to walk along the pavement. That duty was owed to blind
persons if the operators foresaw or ought to have foreseen that blind persons might walk
along the pavement and was in no way different from the duty owed to persons with sight,
though the carrying out of the duty might involve extra precautions in the case of blind
pedestrians. That in discharging that duty towards blind persons operators were entitled to
assume that such a person would take reasonable care to protect himself, for example, by
using a stick in order to ascertain if there was anything in his way and by stopping if his stick
touched any unfamiliar object.
Comments: factually a fairly straightforward case; the question is one of what the extent of
the pre-existing duty of care is (i.e. should it include the blind?). What should be noted is that
there was no suggestion of a blanket rule to protect the blind from falling into holes when
there was statutory construction taking place: it would simply be a question of whether it
would be reasonably foreseeable that a blind person may walk along the road affected.
Further, when looking at blind people, they would also be expected to exhibit the qualities of
a blind person reasonably trained in avoiding hazards. However, by no means does reasonable
foresight relate only to able-bodied people. Some curious analogies drawn with negligently
being hit by a car, with the core being that you can expect the blind man to take the
reasonable precautions that are expected of him.
Nettleship v Weston 1971
Facts: The defendant was a learner driver. She was given driving lessons by the plaintiff,
family friend. She ‘froze’ at the wheel, so that her car mounted the pavement and struck a
lamppost. This caused injury to the plaintiff. The plaintiff and the defendant were in join
control of the car, since the plaintiff was controlling the handbrake and the gear stick while
the defendant was steering.
Held: The court of Appeal held that the defendant’s conduct fell below the required standard
of care, which was the same objective standard owed by every driver; Salmon LJ dissented on
this point. There was a reduction of damages on account of the instructors own fault in
respect of the incident.
Summary: Lord Denning stated that under criminal law every person driving a car must
attain the objective standard of a skilled, experienced and careful driver. It would be strange
for tort law to impose a lessor penalty, especially since compulsory insurance means that the
consequence of liability would be the payment of compensation from an insurance fund. The
high objective standard is imposed largely as a result of the policy of the Road Traffic Acts,
in which parliament requires every driver to be insured against third party risks. In this branch
of law, we are moving away from the concept of “No liability without fault” and towards the
test “On whom should the risk fall”. Because the driver is insured, the risk should fall on her.
With regards to responsibility owed to passengers in the car, it should be the same as that
owed to pedestrians outside it as it would be inappropriate and confusing for the driver to owe
a different responsibility to different passengers based on their distinct knowledge.
The three main reasons can be narrowed down to 1) Precedence from criminal law 2) policy
considerations due to compulsory insurance 3) confusion if different people owed different
duty.
Facts: While shopping in the defendants' supermarket (tesco!! :D), the plaintiff slipped and
fell when she trod on some yoghurt that had been spilt on the floor. In her action against the
defendants for damages for negligence, she gave no evidence of how long the yoghurt had
been on the floor but stated that about three weeks later she had been in the supermarket and
noticed some orange squash spilt on the floor and, during a period of about 15 minutes, no
member of staff had dealt with that spillage.
Question of appeal whether the plaintiff had proved a prima facie case without proving that
the spillage had been on the floor for a sufficient time for the defendants to have dealt with it.
Held: Dismissing the appeal (Ormrod L.J. dissenting), that in the circumstances, the plaintiff
having proved that the defendants knew or ought to have known of the likelihood of spillage
on the floor and the danger to customers if that spillage was not dealt with quickly, it was for
the defendants to show on the balance of probabilities that the plaintiff would have slipped on
the yoghurt despite a proper system designed to give reasonable protection to customers
against spillage.
Summary: The defendants argument was that because it is not known when exactly the spill
happened, and because in theory it could have happened a few seconds before the D slipped,
no matter how good their system was it could not have prevented her slipping in such a case;
the burden of proof should be on the plaintiff to prove that it was there for enough time for
the store to have prevented it if there system was proper enough. The courts favored the
plaintiff’s argument, that in such a case the burden was shifted, and it was up to the defendant
to prove that the circumstances of the spilling were such that no matter how proper their
system of cleaning and preventing spills was, it would have not been able to prevent it.
Ward v Tesco 1976
Facts: While shopping in the defendants' supermarket (tesco!! :D), the plaintiff slipped and
fell when she trod on some yoghurt that had been spilt on the floor. In her action against the
defendants for damages for negligence, she gave no evidence of how long the yoghurt had
been on the floor but stated that about three weeks later she had been in the supermarket and
noticed some orange squash spilt on the floor and, during a period of about 15 minutes, no
member of staff had dealt with that spillage.
Question of appeal whether the plaintiff had proved a prima facie case without proving that
the spillage had been on the floor for a sufficient time for the defendants to have dealt with it.
Held: Dismissing the appeal (Ormrod L.J. dissenting), that in the circumstances, the plaintiff
having proved that the defendants knew or ought to have known of the likelihood of spillage
on the floor and the danger to customers if that spillage was not dealt with quickly, it was for
the defendants to show on the balance of probabilities that the plaintiff would have slipped on
the yoghurt despite a proper system designed to give reasonable protection to customers
against spillage.
Summary: The defendants argument was that because it is not known when exactly the spill
happened, and because in theory it could have happened a few seconds before the D slipped,
no matter how good their system was it could not have prevented her slipping in such a case;
the burden of proof should be on the plaintiff to prove that it was there for enough time for
the store to have prevented it if there system was proper enough. The courts favored the
plaintiff’s argument, that in such a case the burden was shifted, and it was up to the defendant
to prove that the circumstances of the spilling were such that no matter how proper their
system of cleaning and preventing spills was, it would have not been able to prevent it.
“It is for the plaintiff to show that there has occurred an event which is unusual and which, in
the absence of explanation, is more consistent with fault on the part of the defendants than the
absence of fault.”
Bolitho v City of Hackney Health Authority 1997
Facts: A 2-year old child suffered brain damage, and later died, as a result of cardiac arrest
following respiratory failure. He was in the care of hospital staff and had suffered two severe
episodes of respiratory difficulties before the final attack. On both occasions, the nurses
caring for the child called for a doctor to attend, but on neither case did a doctor attend. It was
the plaintiff’s case that the doctor should have attended, and that he she should’ve intubated
the child, and that if this was done then the respiratory failure and cardiac arrest would have
been repeated. It was the doctor’s case that even if she had attended, she would not have
intubated, and hence her failure to attend had not caused the injury. The question arose
whether this failure to intubate would have been negligent, and hence not a valid defence to
negligence. At the trial, both the defendant and the plaintiff had a professionally distinguished
body of expert witnesses supporting their view.
Held: The court of appeal had found in favour of the doctor by applying from Bolam v Friern
Hospital Management Committee [1957]. (Bolan Test: a medical practitioner cannot be held
guilty of negligence if there is a responsible body of professional opinion in favour of his
approach and another against his approach). The administratrix of the estate of the child
appealed; the appeal was dismissed.
Summary: The plaintiff’s argument was that the Bolan test (a medical practitioner cannot be
held guilty of negligence if there is a responsible body of professional opinion in favour of his
approach and another against his approach) should not be followed if the view of one side,
according to the court, is illogical or not sensible. The House held that the court was not
bound to follow the Bolan test, and even within the Bolan test it was for the court to decide
whether the experts counted as a "responsible body of medical men". Where cases concerned
the balancing of risks against benefits, the court had to be sure that, in forming their opinion,
the medical experts had considered the issue of comparative risks and benefits and had
reached a view which could be defended. However, The House went on to say that it would
only be in rare cases that the court would reject the medical experts' view as unreasonable and
the evidence did not support such a conclusion in the instant case, in which the Bolan test was
of central importance.
C. Causation and remoteness
The But-For Test
Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428
Three night-watchmen came to a hospital casualty department, having been vomiting for
three hours after drinking tea. The nurse reported their complaints by telephone to the duty
medical casualty officer, who thereupon instructed her to tell the men to go home to bed and
call in their own doctors. About five hours later, one of them died from poisoning by arsenic
which had been introduced into the tea; he might have died from the poisoning even if he had
been admitted to the hospital wards and treated with all care five hours before his death.
Held: (1) dismissing the action, a close and direct relationship existed between them and him
that they owed him a duty to exercise the skill and care to be expected of a nurse and medical
casualty officer acting reasonably (2) That the medical casualty officer was negligent in not
seeing and not examining the deceased, in not admitting him to the wards and in not treating
him or causing him to be treated ; and that, accordingly, the defendants were in breach of
their duty to the deceased. (3) But that, since he must have died of the poisoning even if he
had been admitted to the wards five hours before his death and treated with all care, the
plaintiff had failed to establish on the balance of probabilities that the defendants' negligence
had caused the death; and that, therefore, the claim failed.
McWilliams v Sir William Arrol & Co. Ltd
A factory worker who wasn’t wearing a safety belt fell to his death. The defendant, who was
under a duty to provide the belt, introduced evidence suggesting that even if a belt was
available it wouldn’t have been worn.
HELD – HL: The onus was on the pursuer to establish not only the breach of duty but also
the causal connection between the breach and the injury. What the deceased workman would
have done, had the safety belt been provided, could be a matter of inference from appropriate
facts and here the irresistible inference was that he would not have worn it. Further, there was
no obligation on his employers to exhort him to wear one. Accordingly, liability was not
established.
“The answer in my view must be that there are four steps of causation: (1) a duty to supply a
safety belt; (2) a breach; (3) that if there had been a safety belt the deceased would have used
it; (4) that if there had been a safety belt the deceased would not have been killed. If the
irresistible inference is that the deceased would not have worn a safety belt had it been
available, then the first two steps in the chain of causation cease to operate.”
Hotson v East Berkshire A.H.A. [1987]
C, then aged 13, fell some 12 feet while climbing a tree and sustained an acute traumatic
fracture of the left femoral epiphysis. He was taken to hospital, but his injury was not
correctly diagnosed or treated for five days. In the event, he suffered avascular necrosis of the
epiphysis, involving disability of the hip joint with the virtual certainty that osteoarthritis
would later develop. He brought an action for damages against, inter alia, D, health authority,
who admitted negligence in failing to diagnose and treat his injury promptly.
HELD – HL: Allowing the appeal of the hospital, that it had been for C to establish on a
balance of probabilities that the delay in treatment had at least materially contributed to the
development of the avascular necrosis and for the judge to resolve on a balance of
probabilities the conflict of medical evidence as to what had caused the avascular necrosis,
that the judge's findings of fact were unmistakably to the effect that on a balance of
probabilities C's fall had left insufficient blood vessels intact to keep the epiphysis alive,
which amounted to a finding of fact that the fall had been the sole cause of the avascular
necrosis; and that, accordingly, the plaintiff had failed on the issue of causation and no
question of quantification had arisen
Per Lord Bridge of Harwich. (i) There are formidable difficulties in the way of accepting the
superficially attractive analogy between the principle applied in cases of damages for a lost
chance in actions based on contract or tort and the principle of awarding damages for the lost
chance of avoiding personal injury or, in medical negligence cases, for the lost chance of a
better medical result which might have been achieved by prompt diagnosis and correct
treatment, but the present appeal is not a suitable occasion for reaching a settled conclusion.
(ii) If the plaintiff had proved on a balance of probabilities that the authority's negligent
failure to diagnose and treat his injury promptly had materially contributed to the
development of avascular necrosis, no principle of English law would have entitled the
authority to a discount from the full measure of damage to reflect the chance that, even given
prompt treatment, avascular necrosis might well still have developed
Per Lord Mackay of Clashfern. It would be unwise in the present case to lay it down as a rule
that a plaintiff could never succeed by proving loss of a chance in a medical negligence case
Wilsher v Essex Area Health Authority 1988
A prematurely born baby suffered a condition known as RLF (retrolental fibroplasia), which
led to blindness. This condition may have been caused by the defendants’ breach of duty in
negligently exposing the baby to excess oxygen or by the natural consequences of premature
birth.
Held: The House of Lords rejected an argument (accepted by the Court of Appeal) that
McGhee should apply to assist the plaintiff, in that the defendants materially contributed to
the risk that the baby would suffer RLF and could therefore be treated as materially
contributing to the injury. The House of Lords endorsed the opinion of Sir Nicolas BrowneWilkinson V-C in the Court of Appeal, and stated that the defendant’s failure to take a
necessary precaution raised no presumption and provided no evidence that it was the lack of
oxygen as opposed to any other factor that caused the condition. The onus of proving
causation rested on the plaintiff; issue of causation to be retried.
Sir Browne-Wilkinson differentiated McGhee by stating: “The position, to my mind, is
wholly different from that in the McGhee [1973], case 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.” The
House also cast doubt on the general authority of McGhee. Lord Bridge suggested that
McGhee laid down no ‘new principle of law whatever’ and that the majority decision was
base not on an adaptation of legal principle but on an inference of fact.
“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.”
Allied Maples Group Ltd. v Simmons & Simmons
The plaintiffs instructed the defendant solicitors to act for them in the takeover of assets of the
vendor. The defendants drafted an agreement which included a warranty by the vendor. In the
course of negotiations, however, that warranty was replaced by a compensation clause. After
the deal went through, claims materialized that were not caught by the compensation clause
but would’ve been caught by the warranty. The plaintiffs brought an action against the
defendants claiming damages in respect of their negligent advice.
Held: (1) that the establishment of a causal link between the defendant's negligence and the
plaintiff's loss where the negligence consisted of some positive act was a question of
historical fact to be determined on the balance of probability; that, once established, that fact
was taken as true and the plaintiff was entitled to recover his damage in full; but that where
the quantification of the plaintiff's loss depended upon future uncertain events it was decided
on the court's assessment of the risk materialising; that, where the defendant's negligence
consisted of an omission, causation depended on the answer to the hypothetical question of
what the plaintiff would have done if the defendant had not been guilty of the
omission, which was a matter of inference to be determined from all the circumstances and
that where the plaintiff's loss depended on the hypothetical action of a third party he was
entitled to succeed if he could show that there was a real or substantial, rather than a
speculative, chance that the third party would have acted so as to confer the benefit or avoid
the risk to the plaintiff
(2) (Millett L.J. dissenting) that there was ample evidence to support the judge's findings of
fact that, but for the defendants' negligence, the plaintiffs would have had a realistic chance
that the vendor would have provided a warranty restricted to the four stores or that the vendor
would have been prepared to indemnify the plaintiffs in respect of the subsidiary's liability;
and that, accordingly, having proved that they had lost such a chance, the plaintiffs had
established causation and the evaluation of the chance was a matter for the quantification of
damages, and the judge's order would therefore be varied
Fairchild v Glenhaven 2002
The three claimants were each exposed to asbestos dust by several employers, and each
suffered mesothelioma. The precise manner in which asbestos caused the cancer is unknown
to medical science, though it is accepted that greater exposure increases chances of cancer
Held – HL: Where the onset of the disease could not be attributed to any particular or
cumulative wrongful exposure, a modified approach to proof of causation was justified. Proof
that each defendant's wrongdoing had materially increased the risk of contracting the disease
was sufficient to satisfy the causal requirements for his liability. Hence, the claimants could
prove, on a balance of probabilities, the necessary causal connection to establish the
defendants' liability
Principle: Whether the but-for test should be varied in special circumstances. A and B owed
a duty to protect C against risk of a particular and serious kind. They failed to perform that
duty and C suffered the harm as a result. Just because there are two tortfeasors and it is not
scientifically possible to determine which one caused the harm, doesn’t mean that both should
be free of liability.
Policy: Clash of policy considerations: An employer may be held liable for damage he has
not caused; the risk is greater where all the employers potentially liable are not before the
court. This is outweighed by the 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.
His Lordship stated that where those conditions are satisfied, it was just to treat the conduct of
A and B in exposing C to a risk that he should not have been exposed as making a material
contribution to the contracting by C of a condition against which it was the duty of A and B to
protect him. (WHAT IS THE SIGNIGICANCE OF MATERIAL CONTRIBUTION? IS THE
TEST CASUED OR MATERIALLY CONTRIBUTED TO?)
Sienkiewicz v Greif (UK) Ltd 2009
C had worked for G at their factory premises where asbestos dust had been released during
the course of manufacture of steel drums. C had also been exposed, in common with other
inhabitants in her area, to a low level of asbestos dust in the general atmosphere. The tortious
exposure materially increased the risk of C contracting mesothelioma in the sense that the risk
was more than minimal; but the total tortious exposure was modest compared with the total
environmental exposure and increased the risk due to the environment by only 18 per cent,
and the tortious exposure had not more than doubled the risk of non-tortious exposure.
Held: In a claim for damages for death due to mesothelioma where there was a tortious as
well as an environmental exposure to asbestos, it was not necessary for a claimant to show
that the risk arising from the tortious exposure was more than twice the risk arising from the
non-tortious causes; it was sufficient to show that the tortious exposure materially increased
the risk of contracting mesothelioma in the sense that the risk was more than minimal. The
Compensation Act 2006 s.3, reflected the common law requirements of causation, which
required proof of causation in mesothelioma cases by reference to a material increase in risk.
Gregg v Scott [2005]
C developed a ump under his arm which his GP (D) told him was benign. By the time C
found out it was cancerous, it had spread into his chest. C claimed that that his chances of
survival were damaged by the D‘s negligence. C’s chances of survival would have been 42%
if treated promptly but fell to 25%.
HELD – HL: Dismissing the appeal (Lord Nicholls and Lord Hope dissenting), that a claim
for damages for clinical negligence required proof on a balance of probability that the
negligence was the cause of the adverse consequences complained of; that an exception
would not be made to that requirement so as to allow a percentage reduction in the prospects
of a favourable outcome as a recoverable head of damage.
SUMMARY: Despite powerful arguments in favour of loss of chance approach the majority
held that the claim for loss of chance should be rejected. For The Hoff, the material issue in
Gregg was no different from that in Hotson; in both cases the relationship between the
negligence of the defendant and the beneficial outcome C hoped to achieve was shrouded in
uncertainty and the law dealt with uncertainty through burden of proof. The judge held that
the uncertainty of the cause of harm meant that while the delay in diagnosis had increased the
chances of premature death, it was not enough to enable him to say on a balance of
probability that it would not have otherwise happened. According to the Hoff, it was not
permissible to reframe the claim as one for loss of chance and avoid the evidential difficulties.
Unlike Nicholls, who drew a distinction between the evidential uncertainty in Hotson and the
scientific uncertainty in Gregg. Similarly, Baronness Hale believed that the cases were
different, as in Hotson there was no chance to lose. But Hale declined to accept it as a form of
damage for which compensation was available, as it risked transferring the law of negligence
from liability for outcomes to liability for chances.
Lord Phillips pointed out the difficulties of trying to access the statistical chacnes in a case lie
Gregg where the adverse outcome had not yet occurred. He distinguished the Hotson cases as
a case where the claim was for the adverse outcome rather than the loss of a chance to avoid
that outcome, but this avoids the key question of when C will be allowed to frame the claim
as one for loss of chance as to avoid the difficulties of proving causation. Lord Phillips
rejected the claim for loss of chance on the basis that the adverse decision was still
prospective: “awarding damages for reduction of the prospect of a cure, when the long term
result of treatment is still uncertain is not a satisfactory exercise”. The fact that he had
survived thus far was an indication that his chance of survival was better than 25%. So for
him coin was still in the air.
Lord Hope found an alternative ground for the decision: as the negligence was responsible for
some physical change – the growth of the tumour – this constituted ‘damage’ so as to
complete the action in negligence and the lost chance of avoiding cancer could be claimed as
damage consequent upon physical injury.
BARONESS HALE (The loss of chance argument): “Until now, the gist of the action for
personal injuries has been damage to the person…Compare the loss of a chance approach: my
negligence probably caused a reduction in the chance of your keeping that leg: I pay you the
value of the loss of your leg, discounted by the chance that it would have happened anyway.
…[Under such a model] if the chance of saving the leg was comparatively poor, say 20%, the
claimant still gets £20,000. So the claimant ends up with less than full compensation even
though his chances of a more favourable outcome were good. And the defendant ends up
paying substantial sums even though the outcome is one for which by definition he cannot be
shown to be responsible.”
“Almost any claim for loss of an outcome could be reformulated as a claim for loss of a
chance of that outcome. The implications of retaining them both as alternatives would be
substantial. That is, the claimant still has the prospect of 100% recovery if he can show that it
is more likely than not that the doctor's negligence caused the adverse outcome. But if he
cannot show that, he also has the prospect of lesser recovery for loss of a chance…It would be
a "heads you lose everything, tails I win something" situation. But why should the defendant
not also be able to redefine the gist of the action if it suits him better?”
“the expert evidence would have to be far more complex than it is at present. Negotiations
and trials would be a great deal more difficult. Recovery would be much less predictable both
for claimants and for defendants' liability insurers. There is no reason in principle why the
change in approach should be limited to medical negligence. Whether or not the policy choice
is between retaining the present definition of personal injury in outcome terms and redefining
it in loss of opportunity terms, introducing the latter would cause far more problems in the
general run of personal injury claims than the policy benefits are worth.”
Barker v Scott [2006]
The claimants had suffered mesothelioma after tortious non-tortious exposure to asbestos by a
number of employers, many of whom had since become insolvent. Question whether the
defendants were jointly and severally liable for the employee's mesothelioma.
HELD – HL: Under the exception to the normal rules on liability in negligence, whereby any
relevant employer could be liable in relation to mesothelioma caused by wrongful exposure of
an employee to asbestos, liability was imposed where a defendant, by a breach of duty, had
materially increased the risk that the employee would contract mesothelioma; that, in fairness,
where more than one person was in breach of duty and might have been responsible, liability
should be attributed according to the defendant's relative degree of contribution to the risk;
and accordingly, D's liability was several only.
The exception applied even where not all the exposures to asbestos involved breaches of duty,
even if, as in the first case, the employee himself was responsible for a material exposure.
Creating a risk as damage: “If the basis of liability is the wrongful creation of a risk, the
damage should be the creation of such a risk.
Fairness: “The attribution of liability according to the relative degree of contribution to the
chance of the disease being contracted would smooth the roughness of the justice which a rule
of joint and several liability creates.
But this is not the law anymore: Compensation Act 2006 s.3:
If the conditions for imposing liability set out in Fairchild are met, the responsible person is
found liable in respect of the whole of the damage, irrespective of the existence of other
sources of exposure, whether from other responsible persons, other non-tortious sources, or
the claimant himself.
Barker therefore only applies where the Fairchild principle takes place outside the context of
asbestos-induced mesothelioma.
S 3 Mesothelioma: damages
(2) The responsible person shall be liable–
(a) in respect of the whole of the damage caused to the victim by the disease
irrespective of whether the victim was also exposed to asbestos–
(i) other than by the responsible person, whether or not in circumstances
in which another person has liability in tort, or
(ii) by the responsible person in circumstances in which he has no
liability in tort), and
(b) jointly and severally with any other responsible person.
(3) Subsection (2) does not prevent–
(a) one responsible person from claiming a contribution from another, or
(b) a finding of contributory negligence.