Fairchild (HoL)

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Status: Positive or Neutral Judicial Treatment *32 Fairchild v Glenhaven Funeral Services Ltd and Others Fox v Spousal (Midlands) Ltd Matthews v Associated Portland Cement Manufacturers (1978) Ltd and Another House of Lords 20 June 2002 [2002] UKHL 22 [2003] 1 A.C. 32 Lord Bingham of Cornhill , Lord Nicholls of Birkenhead , Lord Hoffmann , Lord Hutton and Lord Rodger of Earlsferry 2002 May 7, 8, 9; 16; June 20 Negligence—Causation—Asbestos exposure—Claimants developing mesothelioma after exposure to asbestos dust in more than one employment—Inhalation of single or many asbestos fibres equally probable trigger of disease—Claimants unable to establish which employment causing mesothelioma—Whether any employer liable Three appeals heard together related to employees who had developed mesothelioma caused by exposure at work to asbestos dust. All the employees had been exposed to asbestos dust during periods of employment with more than one employer. In each case the claimant sought damages against defendants who, in breach of their duty to protect the employee from the risk of contracting the disease, had exposed him to substantial inhalation of asbestos dust or fibres. In two cases the claims were dismissed on the ground that the claimants could not establish, on a balance of probabilities, which of the potential tortfeasors had exposed the employee to the asbestos dust that had caused the disease, and the claimants appealed. In the third case the judge held that by exposing the claimant to asbestos fibres each defendant had materially contributed to and so had caused his mesothelioma, and he apportioned liability between the defendants. The defendants appealed. In the Court of Appeal it was common ground that the mechanism initiating the genetic process which culminated in mesothelioma was unknown, that the trigger might equally probably be a single, a few or many fibres, that once caused the condition was not aggravated by further exposure but that the greater the quantity of fibres inhaled the greater the risk of developing the disease. The Court of Appeal concluded that, since mesothelioma was an indivisible disease triggered on a single unidentifiable occasion by one or more fibres, it could not be proved on a balance of probabilities, where the claimant had been exposed to asbestos fibres by several potential tortfeasors, which period of exposure had caused the disease. The court accordingly held that the claimant in each case had failed to establish causation against any of the defendants and dismissed the appeals in the first two cases and allowed the appeal in the third case. On appeal by the claimants— Held, allowing the appeals, that, where an employee had been exposed by different defendants, during different periods of employment, to inhalation of asbestos dust in breach of each defendant's duty to protect him from the risk of contracting mesothelioma and where that risk had eventuated but, in current medical knowledge, the onset of the disease could not be attributed to any particular or cumulative wrongful exposure, a modified approach to proof of causation was Page 1

description

Fairchild case (House of Lords)

Transcript of Fairchild (HoL)

  • Status: Positive or Neutral Judicial Treatment

    *32 Fairchild v Glenhaven Funeral Services Ltd and Others

    Fox v Spousal (Midlands) Ltd

    Matthews v Associated Portland Cement Manufacturers (1978) Ltd andAnother

    House of Lords20 June 2002

    [2002] UKHL 22

    [2003] 1 A.C. 32Lord Bingham of Cornhill , Lord Nicholls of Birkenhead , Lord Hoffmann , Lord Hutton and Lord

    Rodger of Earlsferry2002 May 7, 8, 9; 16; June 20

    NegligenceCausationAsbestos exposureClaimants developing mesothelioma after exposure toasbestos dust in more than one employmentInhalation of single or many asbestos fibres equallyprobable trigger of diseaseClaimants unable to establish which employment causingmesotheliomaWhether any employer liableThree appeals heard together related to employees who had developed mesothelioma caused byexposure at work to asbestos dust. All the employees had been exposed to asbestos dust duringperiods of employment with more than one employer. In each case the claimant sought damagesagainst defendants who, in breach of their duty to protect the employee from the risk ofcontracting the disease, had exposed him to substantial inhalation of asbestos dust or fibres. Intwo cases the claims were dismissed on the ground that the claimants could not establish, on abalance of probabilities, which of the potential tortfeasors had exposed the employee to theasbestos dust that had caused the disease, and the claimants appealed. In the third case thejudge held that by exposing the claimant to asbestos fibres each defendant had materiallycontributed to and so had caused his mesothelioma, and he apportioned liability between thedefendants. The defendants appealed. In the Court of Appeal it was common ground that themechanism initiating the genetic process which culminated in mesothelioma was unknown, thatthe trigger might equally probably be a single, a few or many fibres, that once caused thecondition was not aggravated by further exposure but that the greater the quantity of fibresinhaled the greater the risk of developing the disease. The Court of Appeal concluded that, sincemesothelioma was an indivisible disease triggered on a single unidentifiable occasion by one ormore fibres, it could not be proved on a balance of probabilities, where the claimant had beenexposed to asbestos fibres by several potential tortfeasors, which period of exposure had causedthe disease. The court accordingly held that the claimant in each case had failed to establishcausation against any of the defendants and dismissed the appeals in the first two cases andallowed the appeal in the third case.On appeal by the claimantsHeld, allowing the appeals, that, where an employee had been exposed by different defendants,during different periods of employment, to inhalation of asbestos dust in breach of eachdefendant's duty to protect him from the risk of contracting mesothelioma and where that risk hadeventuated but, in current medical knowledge, the onset of the disease could not be attributed toany particular or cumulative wrongful exposure, a modified approach to proof of causation was

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  • justified; that in such a case proof that each defendant's wrongdoing had materially increased therisk of contracting the disease was sufficient to satisfy the causal requirements for his liability;and that, accordingly, applying that approach and in the circumstances of each case, theclaimants could prove, on a balance of *33 probabilities, the necessary causal connection toestablish the defendants' liability (post, paras 2, 34, 36, 42, 47, 61, 67, 73, 74, 108, 111, 112,116, 119, 168).McGhee v National Coal Board[1973] 1 WLR 1, HL(Sc) applied .Wilsher v Essex Area Health Authority[1988] AC 1074, HL(E) distinguished .Decision of the Court of Appeal[2002] 1 WLR 1052; [2002] ICR 412 reversed .

    The following cases are referred to in the opinions of their Lordships:

    B v Bayer Nederland BV (1994) NJ 535

    BGHZ (1957) 25, 271

    Baldwin (E M) & Son Pty Ltd v Plane [1999] Aust Torts Rep 81-499

    Bendix Mintex Pty Co v Barnes (1997) 42 NSWLR 307

    Benmax v Austin Motor Co Ltd [1955] AC 370; [1955] 2 WLR 418; [1955] 1 All ER 326, HL(E)

    Birkholtz v RJ Gilbertson Pty Ltd (1985) 38 SASR 121

    Blatch v Archer (1774) 1 Cowp 63

    Bonnington Castings Ltd v Wardlaw 1955 SC 320, Ct of Sess;[1956] AC 613; [1956] 2 WLR707; [1956] 1 All ER 615, HL(Sc)

    Caparo Industries plc v Dickman [1990] 2 AC 605; [1990] 2 WLR 358; [1990] 1 All ER 568,HL(E)

    Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152; [1939] 3 All ER 722, HL(E)

    Chappel v Hart (1998) 195 CLR 232

    Cook v Lewis [1951] SCR 830; [1952] 1 DLR 1

    Craig v Glasgow Corpn 1919 SC (HL) 1, HL(Sc)

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  • Donoghue v Stevenson [1932] AC 562, HL(Sc)

    Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd[1999] 2 AC 22; [1998] 2 WLR 350 ; [1998] 1 Al ER 481, HL(E)

    Fitzgerald v Lane [1987] QB 781; [1987] 3 WLR 249; [1987] 2 All ER 455, CA

    Gardiner v Motherwell Machinery and Scrap Co Ltd 1961 SC (HL) 1, Ct of Sess; [1961] 1WLR 1424; [1961] 3 All ER 831, HL(Sc)

    Hadley v Baxendale (1854) 9 Exch 341

    Haag v Marshall (1989) 61 DLR (4th) 371

    Hotson v East Berkshire Area Health Authority [1987] AC 750; [1987] 3 WLR 232; [1987] 2 AllER 909, HL(E)

    Kay's Tutor v Ayrshire and Arran Health Board 1987 SC (HL) 145; [1987] 2 All ER 417,HL(Sc)

    Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883;[2002] 2 WLR 1353; [2002] 3 All ER 209; [2002] 1 All ER (Comm) 843, HL(E)

    Litzinger v Kintzler (1957) D Jur 493

    McGhee v National Coal Board 1973 SC (HL) 37, Ct Sess; [1973] 1 WLR 1; [1972] 3 All ER1008, HL(Sc)

    March v E & M H Stramare Pty Ltd (1991) 171 CLR 506

    Naxakis v Western General Hospital (1999) 197 CLR 269

    Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613; [1957] 1 All ER776, HL(Sc)

    OLG Mnchen MDR 1967, 671

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  • Quinn v Cameron & Roberton Ltd [1958] AC 9; [1957] 2 WLR 692; [1957] 1 All ER 760,HL(Sc)

    Rahman v Arearose Ltd [2001] QB 351; [2000] 3 WLR 1184, CA

    Reeves v Comr of Police of the Metropolis [2000] 1 AC 360; [1999] 3 WLR 363; [1999] 3 AllER 897, HL(E)

    RG 1969 285

    Rutherford v Owens-Illinois Inc (1997) 67 Cal Rptr 2d 16; 16 Cal 4th 953

    Senior v Ward (1859) 1 El & El 385

    Sentilles v Inter-Caribbean Shipping Corpn (1959) 361 US 107 *34

    Sindell v Abbott Laboratories (1980) 26 Cal 3d 588; 607 P 2d 924

    Snell v Farrell [1990] 2 SCR 311; 72 DLR (4th) 289

    Summers v Tice (1948) 199 P 2d 1

    Vyner v Waldenburg Bros Ltd [1946] KB 50; [1945] 2 All ER 547, CA

    Wakelin v London and South Western Railway Co (1886) 12 App Cas 41, HL(E)

    Wallaby Grip (BAE) Pty Ltd v MacLeay Area Health Service (1998) 17 NSWCCR 355

    Webster v Chapman (1997) 155 DLR (4th) 82

    Wilsher v Essex Area Health Authority [1987] QB 730; [1987] 2 WLR 425; [1986] 3 All ER801, CA[1988] AC 1074; [1988] 2 WLR 557; [1988] 1 All ER 871, HL(E)

    The following additional cases were cited in argument:

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  • Alphacell Ltd v Woodward [1972] AC 824; [1972] 2 WLR 1320; [1972] 2 All ER 475, HL(E)

    Bennett v Minister of Community Welfare (1992) 176 CLR 408

    Bryce v Swan Hunter Group plc [1987] 2 Lloyd's Rep 426; [1988] 1 All ER 659

    Cartledge v E Jopling & Sons Ltd [1963] AC 758; [1963] 2 WLR 210; [1963] 1 All ER 341,HL(E)

    Clark v MacLennan [1983] 1 All ER 416

    Dow Corning Corpn v Hollis (1995) 129 DLR (4th) 609

    Evans (Richard) & Co Ltd v Astley [1911] AC 674, HL(E)

    Fitzgerald v Penn (1954) 91 CLR 268

    Gilbride v Blythswood Shipbuilding Co Ltd (unreported) 27 June 2001, Ct of Sess

    Holtby v Brigham & Cowan (Hull) Ltd [2000] ICR 1086; [2000] 3 All ER 421, CA

    Jones v Dunkel (1959) 101 CLR 298

    Kreglinger (G & C) v New Patagonia Meat and Cold Storage Co Ltd [1914] AC 25, HL(E)

    Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555; [1957] 2 WLR 158; [1957] 1 AllER 125, HL(E)

    Metropolitan Police District Receiver v Croydon Corpn [1957] 2 QB 154; [1957] 2 WLR 33;[1957] 1 All ER 78, CA

    Morgan v Sim (1857) 11 Moo PCC 307, PC

    Stansbie v Troman [1948] 2 KB 48; [1948] 1 All ER 599; 46 LGR 349, CA

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  • Sutherland Shire Council v Heyman (1985) 157 CLR 424

    Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405; [1984] 2 WLR 522;[1984] ICR 236; [1984] 1 All ER 881

    Wintle v Conaust (Vic) Pty Ltd [1989] VR 951

    Workers' Compensation (Dust Diseases) Board v Kelly (2000) 20 NSWCCR 234

    APPEALS from the Court of AppealIn the first case the claimant, Judith Fairchild, suing on her own behalf and as widow andadministratrix of Arthur Fairchild, appealed by leave of the House of Lords (Lord Slynn of Hadley,Lord Millett and Lord Scott of Foscote) granted on 30 January 2002, from the judgment of the Court ofAppeal (Brooke, Latham and Kay LJJ) given on 11 December 2001 whereby they had dismissed herappeal from Curtis J who, on 1 February 2001, following the discontinuance of the proceedingsagainst the first defendant, Glenhaven Funeral Services Ltd, dismissed her claim for damages forpersonal injury against the second and third defendants, Waddingtons plc and Leeds City Council.The claimant's appeal was limited to issues of causation arising in relation to the second defendantand accordingly the third defendant took no further part in the proceedings.

    *35In the second case the claimant, Doreen Fox, suing as widow and administratrix of Thomas Fox,appealed by leave of the House of Lords (Lord Slynn of Hadley, Lord Millett and Lord Scott ofFoscote) granted on 30 January 2002 from the judgment of the Court of Appeal (Brooke, Latham andKay LJJ) given on 11 December 2001 whereby they had dismissed her appeal from Judge Mackay,sitting as a judge of the Queen's Bench Division, who on 27 March 2001 had dismissed her claim fordamages for personal injury against the defendant, Spousal (Midlands) Ltd.In the third case the claimant, Edwin Matthews, appealed by leave of the House of Lords (Lord Slynnof Hadley, Lord Millett and Lord Scott of Foscote) granted on 30 January 2002 from the judgment ofthe Court of Appeal (Brooke, Latham and Kay LJJ) given on 11 December 2001 whereby they hadallowed an appeal by the defendants, Associated Portland Cement Manufacturers (1978) Ltd andBritish Uralite plc, from the order of Mitting J who, on 11 July 2001, had entered judgment for theclaimant for 155,000 on his claim for damages for personal injury and had apportioned liabilityequally between the defendants.The facts are stated in the opinion of Lord Bingham of Cornhill.On 16 May 2002 their Lordships announced that the appeals would be allowed for reasons to begiven later.Sir Sydney Kentridge QC, David Allan QC and Matthew Phillips for the claimants in the second andthird appeals. The issue is whether, where a claimant proves that his mesothelioma has been causedby asbestos dust and the relevant exposure has been contributed to by more than one tortfeasor, butmedical science cannot explain the pathogenesis of the disease or the causative role of any particularexposure, the court can conclude that each tortfeasor who materially increased to the risk of theclaimant's contracting the disease contributed to his injury.Although the precise mechanism by which asbestos fibres, or possibly a single fibre, trigger thedisease is unknown, the effect of exposure to asbestos is cumulative in that each exposure, while notaffecting the severity of the disease once contracted, increases the risk of its occurring. Those heavilyexposed to asbestos dust will have vast numbers of fibres in their lung tissue. Therefore where it isadequately proved that (1) the inhalation of asbestos dust during the course of employment was theonly factor which could have caused the mesothelioma, (2) the disease was the risk which each

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  • employer should have foreseen and guarded against and (3) the employers' negligence and breach ofduty were directly related to that causal factor and that risk, each employer who creates or increasesthe risk of the employee contracting the disease has made a material contribution to his injury and isliable for it.The common law of tort, on established principle should provide an adequate remedy to the victim.Causation is rooted in a commonsense response to a question of fact (see Alphacell Ltd vWoodward[1972] AC 824 ) and does not have to be determined with scientific precision. Causation inmedical terms is framed as an explanation of cause and effect; it is different from the legal concept ofcausation and medical evidence is to be interpreted with that difference in mind. Causation in thelegal sense depends on the context in which responsibility is to be attributed. In the present casesthat context is established (1) by asking what is a defendant's breach of duty, from what harm was herequired to protect the claimant and *36 what was the damage for which he is to be held responsible;and (2) by answering that it is the breach of a duty to guard the employee against the risk ofasbestos-related disease. Therefore that those who introduce the potentially lethal substance into theemployee's lungs are responsible: see Environment Agency (formerly National Rivers Authority) vEmpress Car Co (Abertillery) Ltd [1999] 2 AC 22 ; Stansbie v Troman [1948] 2 KB 48 ; Rahman vArearose Ltd [2001] QB 351 and "Common Sense and Causing Loss" Lord Hoffmann's lecture to theChancery Bar Association, 15 June 1999.Where unavoidable gaps in the medical evidence make it impossible to establish causation by way ofthe "but for" test, courts will adopt a flexible approach to ensure, as far as possible, that a culpabledefendant does not escape liability and an innocent claimant is not left without a remedy: see Blatch vArcher (1774) 1 Cowp 63 . Such an approach is apt where a disease has, without doubt, been causedby exposure to a single noxious substance following separate breaches of duty by differentdefendants.A tortfeasor whose act or omission makes a material (i e, more than de minimis) contribution to theinjury is taken to have caused it and is liable in full for the resulting damage, subject to any right hemay have under the Civil Liability (Contribution) Act 1978 . A wrongful material increase in the risk ofinjury is to be equated with a material contribution to it. That broad approach is justified in the presentcases where there is only one causal factor for the disease suffered, each defendant has materiallyincreased the risk that the claimant would incur the disease, each defendant acted wrongfully, andonly the precise mechanism of the development of the disease is left in doubt: see BonningtonCastings Ltd v Wardlaw [1956] AC 613 ; Nicholson v Atlas Steel Foundry and Engineering Co Ltd[1957] 1 WLR 613 ; McGhee v National Coal Board [1973] 1 WLR 1 .The McGhee case provides the correct basis for determining causation in the present cases and isnot to be distinguished on the ground that it involved one, as opposed to multiple, tortfeasor. Where avictim is subjected to two separate exposures of a noxious substance, one "innocent" and the other"guilty", but medical knowledge cannot establish which exposure has triggered the disease, nor thatthe two exposures acting together have brought it about, the "guilty" exposure materially contributesto the injury suffered since it has materially increased the risk that it would occur: see Gardiner vMotherwell Machinery and Scrap Co Ltd 1961 SC (HL) 1, 3; [1961] 1 WLR 1424 ; Fitzgerald v Lane[1987] QB 781 ; Bryce v Swan Hunter Group plc[1987] 2 Lloyd's Rep 426 and Gilbride v BlythwoodShipping Co Ltd (unreported) 27 June 2001 ; and contrast Hotson v East Berkshire Area HealthAuthority [1987] AC 750 . Wilsher v Essex Area Health Authority [1987] QB 730 and [1988] AC 1074is distinguishable on its facts. Notwithstanding Lord Bridge's analysis of McGhee v National CoalBoard[1973] 1 WLR 1 , in Wilsher v Essex Area Health Authority [1988] AC 1074 , the House of Lordsin McGhee did state and apply the very principle contended for here.The Court of Appeal adopted too narrow and mechanistic an approach to causation and their decisionwas based on a misunderstanding of the medical evidence. It was incorrect to conclude that, sincethe single fibre hypothesis could not be discounted and it was not possible to determine whichemployment was the source of such a fibre, no single defendant could be held *37 to have causedthe disease. That was an inadequate response to the claim: the common law ought never to producea wholly unreasonable result: see Cartledge v E Jopling & Sons Ltd [1963] AC 758 . Theconsequence of the Court of Appeal's decision, in the absence of advances in medical science, is thatwhere more than one employer was responsible for exposing an employee to asbestos dust all theemployers would escape liability and the employee would have suffered a wrong without a remedy;whereas, by contrast, an employee in sole employment would be able to establish liability. Such aresult would mean that a person whose rights have been infringed by two or more wrongdoers wouldbe less well protected than a person whose rights have been infringed by one.

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  • The general problem now raised is of long standing: see Julian D 9 2 51 ad legem Aquiliam. The "butfor" test has never been seen as all-embracing. In many jurisdictions various solutions have beenadopted to prevent the injustice that would otherwise result: see, persuasively Rutherford vOwens-Illinois Inc (1997) 67 Cal Rptr 2d 16 ); and also Sindell v Abbott Laboratories (1980) 26 Cal(3d) 588 ; B v Bayer Nederland BV(1994) NJ 535 ); Summers v Tice (1948) 199 P (2d) 1 ; AmericanLaw Institute, Restatement of the Law, Torts 2d (1965) , sections 431, 433 and 433B ; Cook v Lewis[1951] SCR 830 ; Snell v Farrell [1990] 2 SCR 311 ; Dow Corning Corpn v Hollis (1995) 129 DLR(4th) 609 ; Webster v Chapman (1997) 155 DLR (4th) 82 ; March v E & M H Stramare Pty Ltd (1991)171 CLR 506 ; Bennett v Minister of Community Welfare (1992) 176 CLR 408 ; Chappel v Hart (1998)195 CLR 232 ; Naxakis v Western General Hospital (1999) 197 CLR 269 ; Workers' Compensation(Dust Diseases) Board v Kelly (2000) 20 NSWCCR 234 ; Wallaby Grip (BAE) Pty Ltd v MacClearyArea Health Service (1998) 17 NSWCCR 355 ; Birkholtz v RJ Gilbertson Pty (1985) 38 SASR 121 ;Fitzgerald v Penn (1954) 91 CLR 268 ; BGB article 830.1, discussed in B S Markesinis: The GermanLaw of Obligations, 3rd ed (1994), vol II , 905 et seq ; article 6.99 BW of the Netherlands Civil Code ;article 1302 of the Austrian Civil Code ; articles 926 and 927 of the Greek Civil Code ; Nils Nygaard:Injury/Damage and Responsibility (2000) , pp 342-343 citing the Norwegian case; RG 1969 285;French Civil Code , articles 1202, 1383; Spanish Hunting Act 1970 , article 53 and Morales & Sancho:Manual Practico de Responsabilidad Civil, 2nd ed (1995) , pp 311-315, 775-776 .Allan QC followedBrian Langstaff QC and Andrew Hogarth for the claimant in the first appeal, adopting the principalsubmissions of the second and third claimants. A mere possibility of risk is not sufficient to constitutea material contribution. To establish causation for legal purposes there must be proof that the riskestablished by the evidence is that which eventuates: see Hotson v East Berkshire Area HealthAuthority [1987] AC 750 . In the present cases the risk which eventuated was cumulative, contributedto by the acts and failures of different parties, but there is no reason of principle why different partiesshould be excluded from liability because they might be responsible for different contributions to theoverall risk. The authority of McGhee v National Coal Board [1973] 1 WLR 1 is strengthened, notweakened, byWilsher v Essex Area Health Authority [1987] QB 730 and [1988] AC 1074 .

    *38The moral imbalance resulting from the Court of Appeal's approach to causation is unacceptable.Policy considerations dictate as appropriate a test for causation whereby the defendant (who willoften be insured) should pay rather than that the victim should remain uncompensated. Thoseconsiderations in general prevail in other jurisdictions: see Rutherford Owens-Illinois Inc 67 Cal Rptr2d 16 ; Snell v Farrell [1990] 2 SCR 311 ; Chappel v Hart 195 CLR 232 ; Naxakis v Western GeneralHospital 197 CLR 269 ; Workers' Compensation (Dust Diseases) Board v Kelly 20 NSWCCR 234 ;van Gerven, Lever and Larouche: Cases, Materials and Text on National, Supranational andInternational Tort Law (2000) , p 459 et seq ; B S Markesinis: A Comparative Introduction to theGerman Law of Torts, 3rd ed (1994) , p 905 et seq ; Civil Liability Act 1961 (Eire) , section 11(3) andFactories Act 1961 , section 63 .Stephen Stewart QC, Michael Rawlinson and Sarah Spear for the second defendants in the firstappeal and the defendants in the third appeal. Justice and fairness require that only those who proveon a balance of probabilities that the fault of another has caused their injury are entitled tocompensation: see Morgan v Sim (1857) 11 Moo PCC 307 . However, criminal sanctions are providedby section 155 of the Factories Act 1961 against a defendant in breach of his duty to protect theemployee from the present risks; his duty of care and the Asbestos Regulations 1969 (SI 1969/690)are not therefore drained of content even though a claimant's case on causation cannot beestablished in civil proceedings. Policy considerations do not support compensating the victim at theexpense of an innocent defendant, whose insurance position should not be taken into account: seeLister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 . The Court of Appeal's decision doesnot produce a wholly unreasonable result but is rooted in established principle: see Wilsher v EssexArea Health Authority [1988] AC 1074 .The claimant who proves that a defendant's tort has caused or materially contributed to his injurysucceeds in his action, but he fails if he can only prove that the defendant's tort increased the risk ofsuffering the injury. The claimants cannot say that the defendants' tortious fibres have in fact causedor contributed to the illness. They cannot prove that their injury was caused by more than one fibre.One fibre is capable of causing an indivisible injury such as mesothelioma, but is incapable of causinga divisible or cumulative injury such as asbestosis. The medical evidence does not permit a finding

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  • that mesothelioma is a divisible or cumulative injury and it is not open to a court to infer that it is suchan injury or to find that the tortious element of the exposure contributed to the injury. Liability formesothelioma, unlike other asbestos-related illnesses, cannot therefore be susceptible toapportionment: Bonnington Castings Ltd v Wardlaw [1956] AC 613 ; McGhee v National Coal Board[1973] 1 WLR 1 ; Holtby v Brigham & Cowan (Hull) Ltd [2000] ICR 1086 ; Nicholson v Atlas SteelFoundry and Engineering Co Ltd [1957] 1 WLR 613 and Metropolitan Police District Receiver vCroydon Corpn [1957] 2 QB 154 .The present cases are not indistinguishable from McGhee's case: the inference of fact drawn there, inthe context of a cumulative disease, could not be drawn on the undisputed evidence here in thecontext of an indivisible disease. The claimants accordingly cannot prove on a balance of probabilitiesthat more than one fibre was causative and the court cannot *39 find that the different exposurescontributed cumulatively to causation. Even if the medical evidence did allow such a finding it wouldprohibit any inference that the multiple fibres came from more than one source. The McGhee caseneither establishes any new principle of law nor yields authoritative guidance: see the Wilsher case[1988] AC 1074 and G & C Kleglinger v New Patagonia Meat and Cold Storage Co Ltd [1914] AC 25 ;and contrast the Wilsher case [1987] QB 730 ; Clark v MacLennan [1983] 1 All ER 416 andThompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 .As to authorities from other common law jurisdictions, see in Snell v Farrell [1990] 2 SCR 311 ;Chappel v Hart 195 CLR 232 ; Naxakis v Western General Hospital 197 269 and Rutherford vOwens-Illinois Inc 67 Cal Rptr 2d 16 . In general the outcome of the international cases is to reflectthe views taken by particular courts of the medical evidence rather than expose differences ofprinciple. The cases do not therefore assist: see Wintle v Conaust (Vic) Pty Ltd [1989] VR 951 ;Bendix Mintex Pty Co v Barnes [1997] 42 NSWLR 307 ; Wallaby Grip (BAE) Pty Ltd v MacLeod AreaHealth Service 17 NSWCCR 355 ; EM Baldwin & Son Pty Ltd v Plane [1999] Aust Torts Rep 81-499 ;Workers' Compensation (Dust Diseases) Board v Kelly 20 NSWCCR 234 ; Bennett v Minister ofCommunity Welfare 176 CLR 408 ; Sutherland Shire Council v Heyman (1985) 157 CLR 424 ;Naxakis v Western General Hospital 197 CLR 269 ; March v E & M H Stramare Pty Ltd 171 CLR 506and Dow Corning Corpn v Hollis 129 DLR (4th) 60 .Nigel Wilkinson QC and William Vandyck for the defendant in the second appeal, adopting thesubmissions of the other defendants. The claimant cannot prove that it is on balance more likely thatthe breach of duty caused or contributed to the deceased's condition. The most that can be shown isthat the deceased's exposure to asbestos by the defendant increased the risk of the diseaseoccurring. The court's task is to decide whether that exposure in fact caused the disease: seeBonnington Castings Ltd v Wardlaw [1956] 1 WLR 613 and Nicholson v Atlas Steel Foundry andEngineering Co Ltd [1957] 1 WLR 613 . There is no new principle which establishes that as a matterof law a material increase in risk of an injury is to be taken as a material contribution to an injury if iteventuates: see McGhee v National Coal Board [1973] 1 WLR 1 and Wilsher v Essex Area HealthAuthority [1988] AC 1074 .The hard nature of the case from the claimant's viewpoint arises in part from the indivisible nature ofthe disease which, unlike a cumulative disease, precludes the drawing of inferences to bridge theevidential gap: see Richard Evans & Co Ltd v Astley [1911] AC 674 and Jones v Dunkel (1959) 101CLR 298 . It is not legitimate for a claimant to seek to reverse the burden of proof (see the Wilshercase [1988] AC 1074 ); nor can the present case be seen as a reduction by the defendant in thechance of the deceased's avoiding mesothelioma: see Hotson v East Berkshire Area Health Authority[1987] AC 750 . Compensation under schemes which do not depend on proof of causation is a matterfor Parliament, but it is unjust to visit liability on a defendant in the basence of proof of causation.The wide range of approaches adopted internationally and among member states of the EuropeanCommunities do not assist: see Cook v Lewis[1951] SCR 830 *40 ; Litzinger v Kintzler(1957) D Jur493 ; BGHZ (1957) 25, 271 and van Gerven, Lever and Larouche: Cases, Materials and Text onNational, Supranational and International Tort Law (2000) , p 431 et seq .Kentridge QC replied.Langstaff QC also replied.Their Lordships took time for consideration.20 June. LORD BINGHAM OF CORNHILL

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  • 1 My Lords, on 16 May 2002 it was announced that these three appeals would be allowed. I now givemy reasons for reaching that decision.2 The essential question underlying the appeals may be accurately expressed in this way. If (1) Cwas employed at different times and for differing periods by both A and B, and (2) A and B were bothsubject to a duty to take reasonable care or to take all practicable measures to prevent C inhalingasbestos 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 employmentby each of them with the result that during both periods C inhaled excessive quantities of asbestosdust, and (4) C is found to be suffering from a mesothelioma, and (5) any cause of C's mesotheliomaother 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 hismesothelioma was the result of his inhaling asbestos dust during his employment by A or during hisemployment by B or during his employment by A and B taken together, is C entitled to recoverdamages against either A or B or against both A and B? To this question (not formulated in theseterms) the Court of Appeal (Brooke, Latham and Kay LJJ), in a reserved judgment of the courtreported at [2002] 1 WLR 1052 , gave a negative answer. It did so because, applying theconventional "but for" test of tortious liability, it could not be held that C had proved against A that hismesothelioma would probably not have occurred but for the breach of duty by A, nor against B thathis mesothelioma would probably not have occurred but for the breach of duty by B, nor against Aand B that his mesothelioma would probably not have occurred but for the breach of duty by both Aand B together. So C failed against both A and B. The crucial issue on appeal is whether, in thespecial circumstances of such a case, principle, authority or policy requires or justifies a modifiedapproach to proof of causation.3 It is common ground that in each of the three cases under appeal conditions numbered (1) to (5)above effectively obtained. During his working life the late Mr Fairchild worked for an employer(whose successor was wrongly identified as the first-named defendant) who carried out sub-contractwork for the Leeds City Council in the early 1960s and may have built packing cases for thetransportation of industrial ovens lined with asbestos. He also worked for a builder, in whoseemployment he cut asbestos sheeting both to repair various roofs and while renovating a factory forWaddingtons plc. In the course of his work Mr Fairchild inhaled substantial quantities of asbestos dustcontaining asbestos fibre which caused him to suffer a mesothelioma of the pleura, from which hedied on 18 September 1996 at the age of 60. Waddingtons plc accepted at trial that it *41 hadexposed Mr Fairchild to the inhalation of asbestos fibres by a breach of the duty owed to him undersection 63 of the Factories Act 1961 . (Waddingtons plc was not an employer, but nothing turns onthis distinction with the other cases.) It thereby admitted that he had been exposed to a substantialquantity of dust or had been exposed to dust to such an extent as was likely to be injurious to him.After the death of Mr Fairchild his widow brought this action, originally against three defendants (notincluding the builder). She discontinued proceedings against the first-named defendant, and on 1February 2001 Curtis J dismissed her claim against Waddingtons plc and the Leeds City Council. TheCourt of Appeal dismissed her appeal against that decision in the judgment already referred to,finding it unnecessary (because of its decision on causation) to reach a final decision on all aspects ofher common law claim against the Leeds City Council. She challenges that causation decision onappeal to the House.4 The late Mr Fox was employed as a lagger by Spousal (Midlands) Ltd (then known by a differentname) for 1-2 years between about 1953 and 1955. In the course of this employment he worked atvarious different premises. Typical lagging work involved the removal of old lagging, the mixing oflagging paste, the cutting of lagging sections and the sweeping up of dust and debris. Asbestosmaterials were used on a daily basis. The activities of laggers generated high levels of dustcontaining asbestos. In these circumstances Mr Fox was exposed to large amounts of asbestos dust,often for many hours each day. He was described by a witness as being covered in dust from head tofoot. No measures were taken to protect him from such exposure. From 1955-1989 he worked as adocker/holdsman in the Liverpool Docks. Until the late 1960s or early 1970s asbestos fibre wasimported into Liverpool Docks in sacks. Mr Fox told his wife that he was regularly involved in movingasbestos cargo and that asbestos was regularly released into his breathing area. The work ofhandling asbestos cargoes would have exposed Mr Fox to substantial amounts of dust and it isunlikely that any measures would have been taken to protect him from such exposure. But there is noevidence of when and for how long and how frequently Mr Fox handled cargoes containing asbestos,nor of what cargoes he handled, nor of the identity of his employers when he was engaged inhandling asbestos. Spousal do not dispute that they were in breach of duty in exposing Mr Fox to

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  • substantial amounts of asbestos dust in the course of his employment by them. In 1995 he developedsymptoms of mesothelioma and he died on 24 April 1996 at the age of 63. It is accepted that hiscondition was caused by exposure to asbestos dust. After his death his widow brought theseproceedings against Spousal. Her claim was dismissed by Judge Mackay, sitting as a judge of theQueen's Bench Division in Liverpool on 27 March 2001. Her appeal against that decision wasdismissed by the Court of Appeal in the judgment already referred to. She challenges that decision onappeal to the House.5 Mr Matthews was employed by Associated Portland Cement Manufacturers (1978) Ltd from1973-1981 at their factory in Strood, Kent. He was exposed to asbestos during the last four years ofthis employment when working as a boilerman. Each day he spent some time (up to about an hour) inthe boilerhouse where the boiler and ancillary pipework were lagged with asbestos material. On anumber of occasions (adding up to about two days in all) he was in close proximity to men removinglagging *42 from pipes, and such work created large amounts of asbestos dust. On a daily basis hewas exposed to dust and debris from the lagging. He walked across pipework disturbing the lagging.He regularly swept the floor in the boilerhouse, stirring up asbestos dust and debris. No effectivemeasures were taken to protect him from exposure to asbestos dust. For five to six weeks in Januaryand February 1973 Mr Matthews was employed by British Uralite plc at their factory in Higham, Kent,where the company manufactured pipes from asbestos material, and Mr Matthews worked on thisprocess. Large amounts of dust containing asbestos fibres were created by the manufacturingprocess and such dust permeated the atmosphere of the factory. During each working day MrMatthews had prolonged and substantial exposure to asbestos dust. No measures were taken toprotect him against such exposure. Between 1965 and 1967 Mr Matthews was employed byMaidstone Sack and Metal and was again exposed to significant quantities of asbestos dust. For 12months of this period he operated a scrap metal press and some of the items fed into the press hadasbestos linings. For about two weeks he worked in a boilerhouse in Chatham Dockyard dismantlinga boiler and pipework, during which time he spent a day removing asbestos lagging from the boilerand pipes, which was dusty work. Maidstone Sack and Metal can no longer be sued. Mr Matthewsconsulted his doctor complaining of chest pain in March 1999. In February 2000 a diagnosis ofmesothelioma was made. His condition has continued to deteriorate, and his life expectancy is nowmeasured in months. Associated Portland Cement and British Uralite admit that Mr Matthews'smesothelioma was caused by exposure to asbestos dust, and that each of them exposed MrMatthews to asbestos dust in breach of duty. Mr Matthews issued proceedings against both thesecompanies in April 2001. On 11 July 2001 Mitting J gave judgment in his favour against bothdefendants and awarded damages. The defendants appealed against that decision, and the Court ofAppeal allowed their appeal and set aside the award in Mr Matthews's favour. He has appealedagainst that decision. It should be recorded that, before the hearing of his appeal in the House, thedefendants agreed to pay Mr Matthews the sum awarded by the judge with interest and costs, withoutprejudice to the issues in the appeal.6 It has been recognised for very many years, at any rate since the "Report on Effects of AsbestosDust on the Lungs and Dust Suppression in the Asbestos Industry" by Merewether and Price in 1930and the making of the Asbestos Industry Regulations 1931 (SR & O 1931/1140) , that it is injurious toinhale significant quantities of asbestos dust. At first, attention was focused on the risk of contractingasbestosis and other pulmonary diseases. It is a characteristic of asbestosis that the disease, onceinitiated, will be influenced by the total amount of dust thereafter inhaled. Thus in the case ofasbestosis the following situation may arise. C may contract asbestosis as a result of exposure toasbestos dust while employed by A, but without such exposure involving any breach of duty by A. Cmay then work for B, and again inhale quantities of asbestos dust which will have the effect ofaggravating his asbestosis. If this later exposure does involve a breach of duty by B, C will have noclaim against A but will have a claim against B. B will not escape liability by contending that hisbreach of duty is not shown to have had any causative effect.

    *437 From about the 1960s, it became widely known that exposure to asbestos dust and fibres couldgive rise not only to asbestosis and other pulmonary diseases, but also to the risk of developing amesothelioma. This is a malignant tumour, usually of the pleura, sometimes of the peritoneum. In theabsence of occupational exposure to asbestos dust it is a very rare tumour indeed, afflicting no morethan about one person in a million per year. But the incidence of the tumour among thoseoccupationally exposed to asbestos dust is about 1,000 times greater than in the general population,and there are some 1,500 cases reported annually. It is a condition which may be latent for many

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  • years, usually for 30-40 years or more; development of the condition may take as short a period asten years, but it is thought that that is the period which elapses between the mutation of the first celland the manifestation of symptoms of the condition. It is invariably fatal, and death usually occurswithin one to two years of the condition being diagnosed. The mechanism by which a normalmesothelial cell is transformed into a mesothelioma cell is not known. It is believed by the bestmedical opinion to involve a multi-stage process, in which six or seven genetic changes occur in anormal cell to render it malignant. Asbestos acts in at least one of those stages and may (but this isuncertain) act in more than one. It is not known what level of exposure to asbestos dust and fibre canbe tolerated without significant risk of developing a mesothelioma, but it is known that those living inurban environments (although without occupational exposure) inhale large numbers of asbestosfibres without developing a mesothelioma. It is accepted that the risk of developing a mesotheliomaincreases in proportion to the quantity of asbestos dust and fibres inhaled: the greater the quantity ofdust and fibre inhaled, the greater the risk. But the condition may be caused by a single fibre, or a fewfibres, or many fibres: medical opinion holds none of these possibilities to be more probable than anyother, and the condition once caused is not aggravated by further exposure. So if C is employedsuccessively by A and B and is exposed to asbestos dust and fibres during each employment anddevelops a mesothelioma, the very strong probability is that this will have been caused by inhalationof asbestos dust containing fibres. But C could have inhaled a single fibre giving rise to his conditionduring employment by A, in which case his exposure by B will have had no effect on his condition; orhe could have inhaled a single fibre giving rise to his condition during his employment by B, in whichcase his exposure by A will have had no effect on his condition; or he could have inhaled fibres duringhis employment by A and B which together gave rise to his condition; but medical science cannotsupport the suggestion that any of these possibilities is to be regarded as more probable than anyother. There is no way of identifying, even on a balance of probabilities, the source of the fibre orfibres which initiated the genetic process which culminated in the malignant tumour. It is on this rockof uncertainty, reflecting the point to which medical science has so far advanced, that the three claimswere rejected by the Court of Appeal and by two of the three trial judges.

    Principle

    8 In a personal injury action based on negligence or breach of statutory duty the claimant seeks toestablish a breach by the defendant of a duty owed to the claimant, which has caused him damage.For the purposes of analysis, and for the purpose of pleading, proving and resolving the claim,lawyers *44 find it convenient to break the claim into its constituent elements: the duty, the breach,the damage and the causal connection between the breach and the damage. In the generality ofpersonal injury actions, it is of course true that the claimant is required to discharge the burden ofshowing that the breach of which he complains caused the damage for which he claims and to do soby showing that but for the breach he would not have suffered the damage.9 The issue in these appeals does not concern the general validity and applicability of thatrequirement, which is not in question, but is whether in special circumstances such as those in thesecases there should be any variation or relaxation of it. The overall object of tort law is to define casesin which the law may justly hold one party liable to compensate another. Are these such cases? Aand B owed C a duty to protect C against a risk of a particular and very serious kind. They failed toperform that duty. As a result the risk eventuated and C suffered the very harm against which it wasthe duty of A and B to protect him. Had there been only one tortfeasor, C would have been entitled torecover, but because the duty owed to him was broken by two tortfeasors and not only one, he is heldto be entitled to recover against neither, because of his inability to prove what is scientificallyunprovable. If the mechanical application of generally accepted rules leads to such a result, theremust be room to question the appropriateness of such an approach in such a case.10 In March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, 508, Mason CJ , sitting in the HighCourt of Australia, did not "accept that the 'but for' (causa sine qua non) test ever was or now shouldbecome the exclusive test of causation in negligence cases" and he added, at p 516:

    "The 'but for' test gives rise to a well known difficulty in cases where there are two ormore 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 acause': Winfield & Jolowicz on Tort, 13th ed (1989) , p 134 . In truth, the application ofthe test proves to be either inadequate or troublesome in various situations in which

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  • there are multiple acts or events leading to the plaintiff's injury: see, e g Chapman vHearse, Baker v Willoughby [1970] AC 467 ; McGhee v National Coal Board ; M'Kew vHolland & Hannen & Cubitts (Scotland) Ltd 1970 SC(HL) 20 (to which I shall shortlyrefer in some detail). The cases demonstrate the lesson of experience, namely, that thetest, applied as an exclusive criterion of causation, yields unacceptable results and thatthe results which it yields must be tempered by the making of value judgments and theinfusion of policy considerations."

    11 In Snell v Farrell [1990] 2 SCR 311, 320 Sopinka J , delivering the judgment of the Supreme Courtof Canada, said:

    "The traditional approach to causation has come under attack in a number of cases inwhich there is concern that due to the complexities of proof, the probable victim oftortious conduct will be deprived of relief. This concern is strongest in circumstances inwhich, on the basis of some percentage of statistical probability, the plaintiff is the likelyvictim of the combined tortious conduct of a number of defendants, but cannot provecausation against a specific defendant or defendants on the basis of *45 particularisedevidence in accordance with traditional principles. The challenge to the traditionalapproach has manifested itself in cases dealing with non-traumatic injuries such asman-made diseases resulting from the widespread diffusion of chemical products,including product liability cases in which a product which can cause injury is widelymanufactured and marketed by a large number of corporations."

    McLachlin J, extra-judicially ("Negligence LawProving the Connection", in Torts Tomorrow , ATribute to John Fleming, eds Mullany & Linden, (1998), p 16), has voiced a similar concern:

    "Tort law is about compensating those who are wrongfully injured. But even morefundamentally, it is about recognising and righting wrongful conduct by one person or agroup of persons that harms others. If tort law becomes incapable of recognisingimportant wrongs, and hence incapable of righting them, victims will be left with a senseof 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 anewwhether the way tort law has traditionally defined the necessary relationship betweentortious acts and injuries is the right way to define it, or at least the only way. Thisquestioning has happened in the United States and in England and has surfaced inAustralia. And it is happening in Canada. Why is this happening? Why are courts nowasking questions that for decades, indeed centuries, did not pose themselves, or if theydid, 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 justiceofwhat is the right result for the situationtells us the victim should obtain somecompensation."

    12 My noble and learned friend Lord Hoffmann has, on more than one occasion, discouraged amechanical approach to the issue of causation. In Environment Agency (formerly National RiversAuthority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22, 29 he said:

    "The first point to emphasise is that common sense answers to questions of causationwill differ according to the purpose for which the question is asked. Questions ofcausation often arise for the purpose of attributing responsibility to someone, forexample, so as to blame him for something which has happened or to make him guiltyof an offence or liable in damages. In such cases, the answer will depend upon the ruleby which responsibility is being attributed."

    More recently, in Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, 1106, para128 , he said:

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  • "There is therefore no uniform causal requirement for liability in tort. Instead, there arevarying causal requirements, depending upon the basis and purpose of liability. Onecannot separate questions of liability from questions of causation. They are inextricablyconnected. One is never simply liable; one is always liable for something and the ruleswhich determine what one is liable for are as much part of the substantive law as therules which determine which acts give rise to liability."

    *46 Laws LJ was reflecting this approach when he said in Rahman v Arearose Ltd [2001] QB 351,367-368, para 33 :

    "So in all these cases the real question is, what is the damage for which the defendantunder consideration should be held responsible . The nature of his duty (here, thecommon law duty of care) is relevant; causation, certainly, will be relevantbut it will fallto 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? ... Novusactus interveniens, the eggshell skull, and (in the case of multiple torts) the concept ofconcurrent tortfeasors are all no more and no less than tools or mechanisms which thelaw has developed to articulate in practice the extent of any liable defendant'sresponsibility for the loss and damage which the claimant has suffered."

    13 I do not therefore consider that the House is acting contrary to principle in reviewing theapplicability of the conventional test of causation to cases such as the present. Indeed, it would seemto me contrary to principle to insist on application of a rule which appeared, if it did, to yield unfairresults. And I think it salutary to bear in mind Lord Mansfield's aphorism in Blatch v Archer (1774) 1Cowp 63, 65 , quoted with approval by the Supreme Court of Canada in Snell v Farrell [1990] 2 SCR311, 328 : "It is certainly a maxim that all evidence is to be weighed according to the proof which itwas in the power of one side to have produced, and in the power of the other to have contradicted."

    Authority

    14 In Bonnington Castings Ltd v Wardlaw [1956] AC 613 , the pursuer contracted pneumoconiosis asa result of inhaling silica dust. The dust came from two sources, a pneumatic hammer and swinggrinders, both in the dressing shop where he worked. The dust emanating from the pneumatichammer involved no breach of duty by the employer, but that from the swing grinders did. In a claimagainst his employer he succeeded before the Lord Ordinary, Lord Wheatley, and by a majority in theFirst Division of the Court of Session, the Lord President (Lord Clyde) dissenting. The issue on appealwas whether the employer's admitted breach of duty in relation to the swing grinders had caused thepursuer's disease. In his leading opinion, Lord Reid made plain, at p 620, that:

    "the employee must in all cases prove his case by the ordinary standard of proof in civilactions: he must make it appear at least that on a balance of probabilities the breach ofduty caused or materially contributed to his injury."

    He pointed out, at p 621, that pneumoconiosis is caused by a gradual accumulation in the lungs ofminute particles of silica inhaled over a period of years, and he regarded the real question as"whether the dust from the swing grinders materially contributed to the disease"(p 621). Heconsidered that any contribution which was not de minimis must be material. The evidence showedthat even if more dust came from the pneumatic hammer than from the swing grinders, there wasenough dust from the grinders to make a substantial contribution towards the pursuer's disease (p622). The pursuer was accordingly entitled to succeed. With these conclusions, *47 ViscountSimonds, Lord Tucker, Lord Keith of Avonholm and Lord Somervell of Harrow agreed, Lord Keithlaying stress, at p 626, on the nature of pneumoconiosis as a disease of gradual incidence and on thecumulative effect of inhalation of dust from the grinders over a period, which might be small inproportion but substantial in total quantity. The case differs from the present in two obvious respects.First, the pursuer had only one relevant employer, who was not legally liable for producing some ofthe dust which the pursuer inhaled but was potentially liable for the balance. Secondly,pneumoconiosis is, like asbestosis, a condition which is aggravated by the inhalation of increasedquantities of dust so that, even if the "innocent" dust had been the first and major cause of the

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  • condition, the "guilty" dust, if in significant quantities, could properly be said to have made it worse.15 Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613 was factually a variantof Wardlaw's case. The claim was made by the widow and children of Mr Nicholson, who had workedin the dressing shop of the defenders' steel foundry, had inhaled dust containing minute siliceousparticles while doing so, had contracted pneumoconiosis and had died. The complaints made in theaction related not to the creation of dust in the dressing shop but to the defenders' failure to provideadequate ventilation to extract the dust. It was common ground that the deceased must inevitablyhave inhaled a quantity, even a large quantity, of noxious particles about which he could have nocause of complaint, and the only question was whether, in addition to those particles, he was, owingto the fault of the defenders in failing to provide adequate ventilation, bound to have inhaled a numberof other particles which made a material contribution to his illness (p 616). The Lord Ordinary foundfor the family, but his decision was reversed by the First Division. In the House the argument centredon the statutory duty to provide proper ventilation imposed by section 4(1) of the Factories Act 1937 ,and Viscount Simonds said, at p 618:

    "if the statute prescribes a proper system of ventilation by the circulation of fresh air soas to render harmless, so far as practicable, all fumes, dust and other impurities thatmay be injurious to health, generated in the course of work carried on in the factory, andif it is proved that there is no system or only an inadequate system of ventilation, itrequires little further to establish a causal link between that default and the illness, dueto noxious dust, of a person employed in the shop. Something is required as was held inWardlaw'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, ampleevidence to support the appellants' case."

    Since the family could not complain of the production of dust, and the deceased had been forced toinhale some noxious particles without having any legal complaint, it was doubly incumbent on theemployer to safeguard him against any additional risk (p 616). Viscount Simonds's conclusion wasclearly expressed, at pp 619-620:

    "For it appears to me that [the evidence] clearly established that dust containingdangerous particles of silica was emitted into the air by the *48 operation of pneumatichammers on the castings, that this dust hung about in concentrated form longer than itwould have if there had been better ventilation, and that improved roof ventilators werepracticable and would have effectively improved the conditions. It follows that owing tothe default of the respondents the deceased was exposed to a greater degree of riskthan he should have been, and, though it is impossible, even approximately, to quantifythe particles which he must, in any event, have inhaled and those which he inhaled butneed 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 musthold 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 anintense cloud the graver must be the risk of infection. In the present case it is clearlyestablished by the evidence that at any rate down to 1949 the tool with which thedeceased was working on dirty castings created a thick cloud of dust which must havenecessarily included siliceous particles to an extent which cannot classed as 'deminimis'. 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 duringwhich the cloud remains intense. It seems to me to follow that the respondents' failure toprovide 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 LordReid in Wardlaw's case) 'on a balance of probabilities the breach of duty caused ormaterially contributed to' the injury."

    Lord Keith of Avonholm regarded it as common sense that better ventilation would have appreciablydiminished the dust which was in the air for the deceased to inhale (p 627) and accordingly concluded

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  • 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 producedbecame, in effect, "guilty" because of the employer's conduct in allowing it to remain in the air for anexcessive period. It is noteworthy that two members of the House (Viscount Simonds and LordCohen) attached significance to the exposure of the deceased to an increased risk.16 Gardiner v Motherwell Machinery and Scrap Co Ltd [1961] 1 WLR 1424 , another Scottish case,concerned a pursuer who had worked for the defenders for a period of some three months,demolishing buildings, and had contracted dermatitis. In an action against the defenders he claimedthat they should have provided him with washing facilities but had failed to do so and that their failurehad caused him to suffer from dermatitis. This contention was upheld by the Lord Ordinary (LordKilbrandon) who awarded him damages. The defenders did not on appeal challenge the finding ofbreach but contended that the pursuer had failed to prove any connection between his disease andthe work which he had been doing. The First Division accepted this argument and found for thedefenders, a decision against which the pursuer appealed. In his leading opinion in the House, *49Lord Reid considered at some length the conflict of medical evidence at the trial and its treatment bythe First Division, and expressed his conclusion, at p 1429:

    "In my opinion, when a man who has not previously suffered from a disease contractsthat disease after being subjected to conditions likely to cause it, and when he showsthat it starts in a way typical of disease caused by such conditions, he establishes aprima facie presumption that his disease was caused by those conditions. I think thatthe facts proved in this case do establish such a presumption. That presumption couldbe displaced in many ways. The respondents sought to show, first, that it is negativedby the subsequent course of the disease and, secondly, by suggesting tinea pedis as anequally probable cause of its origin. I have found the case difficult, but on the evidenceas it stands I have come to the opinion that they have failed on both points. If theappellant's disease and consequent loss should be attributed to the work which he wasdoing in the respondents' service, it was not argued that they are not liable."

    Lord Cohen and Lord Guest agreed, as did Lord Hodson although with some initial hesitation. LordGuest described the question as a pure question of fact whether on the balance of probabilities thedermatitis had arisen from the pursuer's employment (p 1431). The House would seem to haveregarded the pursuer as establishing a prime facie case which the defenders had failed to displace.17 In the course of the present appeals much argument was directed to the decision of the House inMcGhee v National Coal Board [1973] 1 WLR 1 . The earlier stages of that case are reported at 1973SC(HL) 37 and are important in understanding what the House decided. Mr McGhee had beenemployed by the National Coal Board for about 15 years, almost always working in pipe kilns. Forsome 4 days he then worked at a brick kiln, giving up because of a dermatitic condition which hadby then developed. The work inside the kiln was very hot and very dusty. The heat made men sweatprofusely and the operation of the fan caused them to be covered in dust and grit. The pursuercontended that his dermatitis had been caused by his period of working in the brick kiln, short thoughit had been. The employers contended that his work had not caused the dermatitis and that it wasnon-occupational in origin. There was at the trial a conflict of medical evidence but the Lord Ordinary(Lord Kissen) held that the pursuer had contracted the dermatitis in the course of his work at the brickkiln and as a result of his exposure to dust and ashes when working there (p 39). Counsel for thepursuer accepted at trial that he could not establish a breach of statutory duty nor a breach ofcommon law duty based on a failure to ventilate, but relied on two alleged breaches by theemployers: of a duty to take care that the kiln had cooled sufficiently before men went in to work in itand of a duty to take reasonable care to provide adequate showers to enable men to remove dustfrom their bodies. The Lord Ordinary rejected the first of these complaints on a number of grounds,including the lack of proof that the breach of duty, even if established, had caused or materiallycontributed to the dermatitis: it was not enough that a reduction of heat would have lessened the risk(p 41). The Lord Ordinary concluded that the employers were at fault in failing to provide showers (p42) but found against the pursuer on the basis of evidence given by two expert *50 dermatologists,Dr Hannay and Dr Ferguson, called by the pursuer and the employers respectively. He said, at pp42-43:

    "As I have maintained earlier, the pursuer, in order to succeed, must also establish, on a

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  • balance of probabilities, that this fault on the part of the defenders 'caused or materiallycontributed to his injury', that is to his contracting dermatitis. Dr Hannay's evidence wasthat he could not say that the provision of showers would probably have prevented thedisease. He said that it would have reduced the risk materially but he would not gofurther than that. Dr Ferguson said that washing reduces the risk. Pursuer's counselmaintained that a material increase in the risk of contracting a disease was the same asa material contribution to contracting the disease and that Dr Hannay established this byhis evidence. I think that defenders' counsel was correct when he said that thedistinction drawn by Dr Hannay was correct and that an increase in risk did notnecessarily mean a material contribution to the contracting of the disease. The twoconcepts are entirely different. A material increase in risk may refer only to possibilitiesand may not make a possibility into a probability. It may strengthen the possibility butthat cannot mean that in all such cases the possibility has become a probability. Whatthe pursuer has to show is that, as he avers, he would not have contracted the diseasebut for the defenders' breach of duty. He has to show that this was probable and thedegrees of risk have no relevance unless they make the contraction of the disease moreprobable than not contracting the disease. He cannot succeed if the only inference fromthe evidence is that lack of shower baths is a possibility as a cause of his havingcontracted the disease and that the provision of shower baths would have increased thepossibility but not made it a probability. That is the only inference which I can draw fromDr Hannay's evidence and that was the best evidence for the pursuer. Causalconnection between fault and the contraction of the disease has not been established."

    18 The pursuer appealed to the First Division against the dismissal of his claim. The medicalevidence given at the trial was reviewed in detail, and in particular an exchange betweencross-examining counsel and Dr Hannay, at pp 43-44, 47, 50:

    " Q. Do I understand you to say you are not in a position to say that the provision ofshowers would probably have prevented his contracting this skin trouble? A. No onecould say that that would prevent that man developing the condition. It would be likely toreduce the chances."

    In answer to further questions the doctor repeated his opinion that he could only say that the provisionof showers would have reduced the chances of the pursuer contracting dermatitis and that that wasas far as he was able to go. In the course of his judgment the Lord President (Lord Clyde) consideredthe pneumoconiosis cases and expressed his conclusion, at p 44:

    "But in contrast to the pneumoconiosis cases, the present case is essentially concernedwith proof of the causal connection between the fault alleged (i e inadequate washingfacilities) and the development of dermatitis. Even if the pursuer had established (as hedid not) that the absence of washing facilities increased the risk of the pursuer getting*51 dermatitis, that would clearly not prove that the absence of these facilities causedthe disease, nor indeed would it go any distance towards proving it. For risk of dermatitisand causation of dermatitis are two quite separate matters."

    Lord Migdale was of the same opinion, at pp 47-48:

    "Counsel for the pursuer contended that as it was now accepted that the failure toprovide a shower was a breach of the duty which the defenders owed to the pursuer totake reasonable steps for his well-being, the doctors' evidence that it would havematerially 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 causalconnection between the breach and the injury is whether the provision of a showerwould, on a balance of probabilities, have prevented the dermatitis. The Lord Ordinarysays an increase in risk does not mean a material contribution to the contracting of thedisease. A material increase in risk may refer only to possibilities and it does not make apossibility into a probability. 'What the pursuer has to show is that, as he avers, hewould not have contracted the disease but for the breach of duty'. He has to show this

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  • on a balance of probabilities. In my opinion this is correct. Unless the pursuer can pointto evidence that shows that a shower would more probably have avoided the diseasethan not, he cannot succeed and I do not find that evidence in this case."

    Lord Johnston was more hesitant, but in view of the other opinions did not feel inclined to take theview that the evidence was sufficient to allow him to hold that the test of the balance of probability hadbeen satisfied (p 50).19 On appeal to the House counsel for the pursuer faced the problem, as he had at trial and in theFirst Division, that his own evidence precluded a finding that the absence of a shower had probablycaused the pursuer's dermatitis. Mr Davidson QC accordingly relied on the evidence that provision ofa shower would have materially reduced the risk to contend that he had made out a prima facie case.The contrary argument for the employers was advanced by Mr James Mackay QC, as reported at p51:

    "It was accepted that [the provision of washing facilities] would have been a reasonableprecaution, but it did not follow that this would have eliminated the risk. The employeemight have developed dermatitis in any event. If the precaution would not haveprevented the disease, the appellant was not entitled to damages. In the case ofpneumoconiosis the inhalation of dangerous dust inevitably created a basis for thedisease by accumulation, whereas in the case of dermatitis a particle of grit would causethe disease only if there were an abrasion which opened up the layer below the hornyouter 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 havereduced the chances of the contraction of the disease did not mean that what wasprobable would thereby have been rendered improbable."

    Thus the issue, as presented to the House, was whether the pursuer could succeed despite hisinability to show that he would probably not have *52 suffered dermatitis but for the defenders' failureto provide the showers which they should have provided.20 In the House, opinions were given by all five members of the Appellate Committee which heard theappeal and the appeal was allowed: [1973] 1 WLR 1 . Lord Reid, giving the first opinion, describedthe pursuer's complaint based on the failure to provide shower facilities as raising "a difficult questionof law" (p 3d). He pointed out, at p 3, that the breach of duty in relation to showers was admitted, andit was admitted that the disease was attributable to the work which the pursuer had performed in thebrick kiln, but it was contended that the pursuer had not proved that the defenders' failure to carry outthe admitted duty had caused the onset of the disease. Lord Reid's understanding of the evidence,and his view of the proper approach to it, appear from the following passage of his opinion, at pp 4-5:

    "In the present case the evidence does not showperhaps no one knowsjust howdermatitis of this type begins. It suggests to me that there are two possible ways. It maybe that an accumulation of minor abrasions of the horny layer of the skin is a necessaryprecondition for the onset of the disease. Or it may be that the disease starts at oneparticular abrasion and then spreads, so that multiplication of abrasions merelyincreases the number of places where the disease can start and in that way increasesthe risk of its occurrence. I am inclined to think that the evidence points to the formerview. But in a field where so little appears to be known with certainty I could not say thatthat 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 medicalevidence is to the effect that the fact that the man had to cycle home caked with grimeand sweat added materially to the risk that this disease might develop. It does not andcould not explain just why that is so. But experience shows that it is so. Plainly that mustbe because what happens while the man remains unwashed can have a causativeeffect, though just how the cause operates is uncertain. I cannot accept the viewexpressed in the Inner House that once the man left the brick kiln he left behind thecauses which made him liable to develop dermatitis. That seems to me quiteinconsistent with a proper interpretation of the medical evidence. Nor can I accept thedistinction drawn by the Lord Ordinary between materially increasing the risk that thedisease will occur and making a material contribution to its occurrence. There may be

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  • some logical ground for such a distinction where our knowledge of all the materialfactors is complete. But it has often been said that the legal concept of causation is notbased on logic or philosophy. It is based on the practical way in which the ordinaryman's mind works in the everyday affairs of life. From a broad and practical viewpoint Ican see no substantial difference between saying that what the defender did materiallyincreased the risk of injury to the pursuer and saying that what the defender did made amaterial contribution to his injury."

    Lord Wilberforce acknowledged the need for the pursuer to establish both a breach of duty and acausal connection between the default and the disease complained of (p 5), and also the difficulties ofproof which the pursuer faced, at pp 5-6: "[The pursuer's medical expert] could not do more than say*53 that the failure to provide showers materially increased the chance, or risk, that dermatitis mightset in." Lord Wilberforce accepted that merely to show that a breach of duty led to an increase of riskwas not enough to enable a pursuer to succeed, but continued, at p 6:

    "But the question remains whether a pursuer must necessarily fail if, after he has showna breach of duty, involving an increase of risk of disease, he cannot positively prove thatthis increase of risk caused or materially contributed to the disease while his employerscannot positively prove the contrary. In this intermediate case there is an appearance oflogic in the view that the pursuer, on whom the onus lies, should faila logic whichdictated the judgments below. The question is whether we should be satisfied, in factualsituations like the present, with this logical approach. In my opinion, there are furtherconsiderations of importance. First, it is a sound principle that where a person has, bybreach of a duty of care, created a risk, and injury occurs within the area of that risk, theloss 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 showthat his employer should have taken certain precautions, because without them there isa risk, or an added risk, of injury or disease, and who in fact sustains exactly that injuryor disease, have to assume the burden of proving more: namely, that it was the additionto the risk, caused by the breach of duty, which caused or materially contributed to theinjury? In many cases, of which the present is typical, this is impossible to prove, justbecause honest medical opinion cannot segregate the causes of an illness betweencompound 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 orjustice should be that it is the creator of the risk who, ex hypothesi must be taken tohave foreseen the possibility of damage, who should bear its consequences."

    Having referred to Wardlaw [1956] AC 613 and Nicholson [1957] 1 WLR 613, Lord Wilberforceconcluded, at p 7:

    "The present factual situation has its differences: the default here consisted not inadding a material quantity to the accumulation of injurious particles but by failure to takea step which materially increased the risk that the dust already present would causeinjury. And I must say that, at least in the present case, to bridge the evidential gap byinference seems to me something of a fiction, since it was precisely this inference whichthe medical expert declined to make. But I find in the cases quoted an analogy whichsuggests the conclusion that, in the absence of proof that the culpable addition had, inthe result, no effect, the employers should be liable for an injury, squarely within the riskwhich they created and that they, not the pursuer, should suffer the consequence of theimpossibility, foreseeably inherent in the nature of his injury, of segregating the preciseconsequence of their default."

    Lord Simon of Glaisdale considered that Wardlaw's and Nicholson's cases established a rule, at p 8:*54

    "that where an injury is caused by two (or more) factors operating cumulatively, one (ormore) of which factors is a breach of duty and one (or more) is not so, in such a waythat it is impossible to ascertain the proportion in which the factors were effective in

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  • producing the injury or which factor was decisive, the law does not require a pursuer orplaintiff to prove the impossible, but holds that he is entitled to damages for the injury ifhe proves on a balance of probabilities that the breach or breaches of duty contributedsubstantially to causing the injury. If such factors so operate cumulatively, it is, in myjudgment, immaterial whether they do so concurrently or successively."

    Lord Simon then continued, at p 8:

    "The question, then, is whether on the evidence the appellant brought himself within thisrule. In my view, a failure to take steps which would bring about a material reduction ofthe risk involves, in this type of case, a substantial contribution to the injury. In this typeof case a stark distinction between breach of duty and causation is unreal. If theprovision of shower baths was (as the evidence showed) a precaution which anyreasonable employer in the respondents' position would take, it means that suchemployer should have foreseen that failure to take the precaution would, more probablythan not, substantially contribute towards injury: this is sufficient prima facie evidence."

    Lord Simon regarded "material reduction of the risk" and "substantial contribution to the injury" asmirror concepts. Any other conclusion would mean that the defenders were under a legal duty whichthey could, on the present state of medical knowledge, ignore (p 9). Lord Kilbrandon appears to haveadopted a more orthodox approach to tortious liability. He said, at p 10:

    "When you find it proved (a) that the defenders knew that to take the precaution reducesthe risk, chance, possibility or probability of the contracting of a disease, (b) that theprecaution has not been taken, and (c) that the disease has supervened, it is difficult tosee how those defenders can demand more by way of proof of the probability that thefailure caused or contributed to the physical breakdown ... In the present case, thepursuer's body was vulnerable, while he was bicycling home, to the dirt which had beendeposited 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 probablethat disease will be contracted if a shower is not taken. In these circumstances I cannotaccept the argument that nevertheless it is not more probable than not that, if the duty toprovide 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 anirrefragable chain of causation, which in a case of dermatitis, in the present state ofmedical knowledge, he could probably never do."

    In Lord Salmon's opinion the question before the House was whether the pursuer's dermatitis wasproved to have been caused or materially contributed to by the defenders' negligence (p 11). Herejected the view, expressed by the Lord President (see paragraph 18 above) that to increase *55the risk of injury was not, in the circumstances of this case, to cause the injury. In such a case heregarded it as unrealistic and contrary to ordinary common sense to hold that the negligence whichmaterially increased the risk of injury did not materially contribute to causing it (pp 11-12). Heobserved, at p 12:

    "I think that the approach by the courts below confuses the balance of probability testwith the nature of causation. Moreover, it would mean that in the present state ofmedical knowledge and in circumstances such as these (which are by no meansuncommon) an employer would be permitted by the law to disregard with impunity hisduty to take reasonable care for the safety of his employees."

    Lord Salmon's conclusion was expressed in these terms, at pp 12-13:

    "In the circumstances of the present case, the possibility of a distinction existingbetween (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 ofinteresting academic discussions between students of philosophy. Such a distinction is,however, far too unreal to be recognised by the common law."

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  • 21 This detailed review of McGhee permits certain conclusions to be drawn. First, the House wasdeciding a question of law. Lord Reid expressly said so, at p 3. The other opinions, save perhaps thatof Lord Kilbrandon, cannot be read as decisions of fact or as orthodox applications of settled law.Secondly, the question of law was whether, on the facts of the case as found, a pursuer who couldnot show that the defender's breach had probably caused the damage of which he complained couldnone the less succeed. Thirdly, it was not open to the House to draw a factual inference that thebreach probably had caused the damage: such an inference was expressly contradicted by themedical experts on both sides; and once that evidence had been given the crux of the argumentbefore the Lord Ordinary and the First Division and the House was whether, since the pursuer couldnot prove that the breach had probably made a material contribution to his contracting dermatitis, itwas enough to show that the breach had increased the risk of his contracting it. Fourthly, it wasexpressly held by three members of the House (Lord Reid at p 5, Lord Simon at p 8 and Lord Salmonat pp 12-13) that in the circumstances no distinction was to be drawn between making a materialcontribution to causing the disease and materially increasing the risk of the pursuer contracting it.Thus the proposition expressly rejected by the Lord Ordinary, the Lord President and Lord Migdalewas expressly accepted by a majority of the House and must be taken to represent the ratio of thedecision, closely tied though it was to the special facts on which it was based. Fifthly, recognising thatthe pursuer faced an insuperable problem of proof if the orthodox test of causation was applied, butregarding the case as one in which justice demanded a remedy for the pursuer, a majority of theHouse adapted the orthodox test to meet the particular case. The authority is of obvious importancein the present appeal since the medical evidence left open the possibility, as Lord Reid pointed out atp 4, that the pursuer's dermatitis could have begun with a single abrasion, which might have beencaused when he was cycling home, but might equally have been caused when he was working in thebrick kiln; *56 in the latter event, the failure to provide showers would have made no difference. InMcGhee , however, unlike the present appeals, the case was not complicated by the existence ofadditional or alternative wrongdoers.22 In Wilsher v Essex Area Health Authority a problem of causation arose in a different context. Aprematurely-born baby was the subject of certain medical procedures, in the course of which a breachof duty occurred. The baby suffered a condition (abbreviated as RLF) of a kind which that breach ofduty could have caused, and the breach of duty increased the risk of his suffering it. But there were anumber of other factors which might have caused the injury. In the Court of Appeal [1987] QB 730,771-772 Mustill LJ concluded a detailed review of McGhee by making this statement of principle:

    "If it is an established fact that conduct of a particular kind creates a risk that injury willbe caused to another or increases an existing risk that injury will ensue; and if the twoparties stand in such a relationship that the one party owes a duty not to conducthimself in that way; and if the first party does conduct himself in that way; and if theother party does suffer injury of the kind to which the risk related; then the first party istaken to have caused the injury by his breach of duty, even though the existence andextent of the contribution made by the breach cannot be ascertained."

    Omitted from this statement is any reference to condition (5) in the composite question formulated inparagraph 2 at the outset of this opinion. It was on this omission that Sir Nicolas Browne-WilkinsonV-C founded his dissenting opinion, at p 779:

    "To apply the principle in McGhee v National Coal Board [1973] 1 WLR 1 to the presentcase would constitute an extension of that principle. In the McGhee case there was nodoubt that the pursuer's dermatitis was physically caused by brick dust: the onlyquestion was whether the continued presence of such brick dust on the pursuer's skinafter the time when he should have been provided with a shower caused or materiallycontributed to the dermatitis which he contracted. There was only one possible agentwhich could have caused the dermatitis, viz, brick dust, and there was no doubt that thedermatitis from which he suffered was caused by that brick dust. In the present case thequestion is different. There are a number of different agents which could have causedthe RLF. Excess oxygen was one of them. The defendants failed to take reasonableprecautions to prevent one of the possible causative agents (e g excess oxygen) fromcausing RLF. But no one can tell in this case whether excess oxygen did or did notcause or contribute to the RLF suffered by the plaintiff. The plaintiff's RLF may have

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  • 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 babysuffered 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 thoseother four candidates to have caused RLF in this baby. To my mind, the occurrence ofRLF following a failure to take a necessary precaution to prevent *57 excess oxygencausing RLF provides no evidence and raises no presumption that it was excessoxygen rather than one or more of the four other possible agents which caused orcontributed to RLF in this case. The position, to my mind, is wholly different from that inthe 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 againstbrick dust causing dermatitis was followed by dermatitis caused by brick dust. In such acase, I can see the common sense, if not the logic, of holding that, in the absence ofany other evidence, the failure to take the precaution caused or contributed to thedermatitis. To the extent that certain members of the House of Lords decided thequestion on inferences from evidence or presumptions, I do not consider that thepresent case falls within their reasoning. A failure to take preventative measures againstone out of five possible causes is no evidence as to which of those five caused theinjury."

    On the defendants' appeal to the House, this passage in the Vice-Chancellor's judgment wasexpressly approved by Lord Bridge of Harwich, who gave the only opinion, with which Lord Fraser ofTullybelton, 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 thedefendants' appeal in Wilsher , for the reasons which the Vice-Chancellor had given and which theHouse approved. It is one thing to treat an increase of risk as equivalent to the making of a materialcontribution where a single noxious agent is involved, but quite another where any one of a number ofnoxious agents may equally probably have caused the damage. The decision of the Court of Appealdid 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 LordWilberforce on reversal of the burden of proof (see paragraph 20 above) as expressing a "minorityopinion" (p 1087), if Lord Wilberforce was suggesting more than that the proof of an increased riskcan found a prima facie case which casts an evidential burden on the defendant. But much difficulty iscaused by the following passage in Lord Bridge's opinion in which, having cited the opinions of allmembers of the House in McGhee , he said, at p 1090:

    "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 affirmedthe principle that the onus of proving causation lies on the pursuer or plaintiff. Adoptinga robust and pragmatic approach to the undisputed primary facts of the case, themajority concluded that it was a legitimate inference of fact that the defenders'negligence had materially contributed to the pursuer's injury. The decision, in myopinion, is of no greater significance than that and to attempt to extract from it someesoteric principle which in some way modifies, as a matter of law, the nature of theburden of proof of causation which a plaintiff or pursuer must discharge once he hasestablished a relevant breach of duty is a fruitless one."

    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 *58 counsel for the respondents strongly relied on it asauthority for their major contention that a claimant can only succeed if he proves on the balance ofprobabilities that the default of the particular defendant had caused the damage of which hecomplains. As is apparent from the conclusions expressed in paragraph 21 above, I cannot for mypart 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 toconclude that this passage should no longer be treated as authoritative.

    The wider jurisprudence

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  • 23 The problem of attributing legal responsibility where a victim has suffered a legal wrong but cannotshow which of several possible candidates (all in breach of duty) is the culprit who has caused himharm is one that has vexed jurists in many parts of the world for many years. As my noble andlearned friend, Lord Rodger of Earlsferry