SUCCESSIVE TORTFEASORS AND INCREASED RISK OF HARM: A MODIFIED APPROACH TO CAUSATION

• Citation: (2003) 15 SAcLJ 50
• Date: 01 December 2003
• Published date: 01 December 2003

1 The problem of attributing responsibility to the combined tortious conduct of successive employers has repeatedly arisen in the context of industrial disease, where the employee cannot prove who among a number of employers actually caused the injury. This occurs where the employers have failed to take effective measures to protect the employee from the risk of disease which eventuates into the illness complained of. While it may be possible to establish a breach of duty and damage, it may be impossible to prove the causal connection between the breach and the damage by showing that “but for” the breach, the plaintiff would not have suffered the harm. This is because it is impossible for the victim, given the current state of medical science and knowledge, to prove who among the many employers actually caused the disease, given that any other employer could have caused the same injury. A mechanical application of the “but for” test would produce the quite unacceptable result, contrary to common sense, that neither wrongdoing is a cause, thereby depriving the plaintiff of relief.1 Not surprisingly, the “but for” test as the exclusive criterion of causation has come under attack.2

2 The problem of attribution resurfaced in Fairchild v Glenhaven Funeral Services Ltd; Fox v Spousal (Midlands) Ltd; Matthews v Associated Portland Cement Manufacturers (1978) Ltd.3 In these combined appeals (“Fairchild”), the deceased husbands of the appellants, Mrs Fairchild and Mrs Fox, together with the third appellant, Mr Matthews (then gravely ill) had developed mesothelioma as a result of being exposed to substantial amounts of asbestos dust. This exposure occurred in the course of employment with more than one employer.

Applying the conventional test, the Court of Appeal4 dismissed the claims because, due to the current state of medical knowledge, the claimants could not show, on a balance of probabilities, which among the number of employers had caused the disease. The claimants appealed. The crucial issue before the House of Lords was whether in the special circumstances of these cases, principle, authority or policy justified a modified approach to the “but for” test and a different causal requirement based on a just and fair rule. The House of Lords, departing from the conventional test, unanimously allowed these appeals. Lord Bingham of Cornhill stated the conditions for recovery as follows:5

1. (1) C is employed by both A and B at different times and for differing periods; and

2. (2) A and B are both under a duty to take reasonable care to prevent C inhaling noxious particles because of the known risk that it might produce a disease; and

3. (3) Both A and B are in breach of that duty in relation to C during the periods of C’s employment by each of them with the result that during both periods C inhaled excessive quantities of the noxious particles; and

4. (4) C is found to be suffering from that disease; and

5. (5) Any cause of C’s disease other than the inhalation of those particles at work can be effectively discounted; but

6. (6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his disease was the result of his inhaling the particles during his employment by A or during his employment by B or during his employment by A and B taken together.

Where conditions 1 to 6 are satisfied, C is entitled to recover against both A and B. C is entitled to full compensation against either A or B, although A and B could of course seek contribution against each other or any other employer liable in respect of the same damage in the ordinary way.6 Such a result, in Lord Bingham’s view, was consistent with principle, authority and policy.

3 In stating the conditions for recovery, the House of Lords applied the approach taken in McGhee v National Coal Board7 and also made extensive reference to overseas jurisprudence. It is submitted that the solution reached in the House of Lords decision in Fairchild, although confined to the particular facts, clarifies and integrates the approach to be taken in cases of this kind. The much discussed case of McGhee is novel because of its adaptation of the “but for” approach in England and the type of claim to which this approach was applied, namely the field of industrial disease.8

4 In McGhee, the plaintiff contracted dermatitis as a result of working in a hot and dusty brick kiln. The defendants were clearly at fault in not providing showers and the plaintiff contracted dermatitis as a result of his exposure to dust and ashes at the works. However, the plaintiff could not, based on medical evidence, show that the defendants’ breach of duty (involving the increase of risk of disease) had caused the onset of the disease. Therefore, on the balance of probabilities, it could not be proved that the absence of showers had caused or materially contributed to his injury. The issue before the House of Lords was whether the plaintiff could succeed, despite his inability to show that he would probably not have suffered dermatitis but for the defendants’ failure to provide the showers. Medical evidence suggested that the plaintiff’s dermatitis might have occurred either as a result of a single abrasion (which might have been caused when he was cycling home) or as a result of an accumulation of abrasions (when he was working in the brick kiln). In the latter event, the failure to provide showers would have made no difference. Even though the evidence left open the two possible causes of his illness, Lord Reid held that the plaintiff succeeded because the court must take a “broader view of causation”.9 On that view, Lord Reid held that in the circumstances there was no substantial difference between saying that what the defendants did materially increased the risk of injury to the plaintiff and saying that it made a material contribution to his injury.10 Treating the issue as a point of law, Lord Reid held that proof that the defendant’s failure to provide showers had materially increased the plaintiff’s risk of developing dermatitis (which the plaintiff had actually proved) would, as a matter of law, be sufficient to prove that the

defendants had materially contributed to the onset of his condition. On that basis, the plaintiff’s appeal was allowed.11

5 McGhee closely resembles the appeals in Fairchild. In the appeals, the breach of duty materially increased the risk of contracting the respective disease. In none of the cases was it possible, due to the state of medical knowledge then, for the claimants to prove in the usual way how the condition started nor whether it started when the claimants were working with any particular employer. Fairchild diverges from McGhee in one respect: While McGhee involved only one possible wrongdoer, the defendants in the combined appeals were simply some among a number of wrongdoers - a distinction which Lord Rodger of Earlsferry regarded as immaterial for present purposes. The important similarity is the impossibility for the victim to prove on the balance of probabilities the causal connection between the injury and the wrongdoing because of the state of scientific knowledge. It followed that the McGhee principle should apply in the present cases, which Lord Rodger said were a fortioriMcGhee where the risk to the employees was so much worse.

6 From the detailed review of McGhee, Lord Bingham drew certain conclusions: 12

1. (a) The House of Lords was deciding a question of law. Lord Reid expressly said so. The question of law was whether a plaintiff who could not show that the defendants’ breach had probably caused the damage of which he complained of could succeed.

2. (b) Since the plaintiff could not prove using the current state of medical knowledge, that the breach had probably made a material contribution to his contracting dermatitis, it was enough to show that the breach had increased the risk of his contracting it.

3. (c) It was expressly held by three members of the House13 that in the circumstances no distinction was to be drawn between making a material contribution to causing the disease and materially increasing the risk of the plaintiff contracting it.

4. (d) Recognising that the plaintiff faced an insuperable problem of proof if the orthodox test of causation was to be applied, but regarding the case as one in...