Date: Tue, 24 Feb 2004 19:03:20 –0500

From: Jason Neyers

Subject: Fairchild and proportionate damages

The argument of course assumes that Holtby is correct -- a rather contentious issue in some circles.

Ken Oliphant wrote:

Ken Cooper-Stephenson wrote:

(2) Fairchild

What a totally disappointing case and so poorly reasoned on entirely distorted issue statements and factual premises (see e.g. Lord Bingham, who states the issue as if there were only two defendants -- like a Cook v. Lewis situation.) Be that as it may -- and I intend to write on this someday -- I think the problem in Fairchild ought to have been analyzed on the basis that the damages would reflect the percentage possibility that the defendant was the factual cause of the plaintiff's loss

The question of proportionate damages was in fact expressly left open in Fairchild - obviously because the defendants' insurers didn't want to risk a ruling that full damages were available. Mark Lunney and I have argued that the claimant should indeed, as Ken suggests, be limited to proportionate damages (see M Lunney & K Oliphant, Tort Law: Text and Materials, 2nd edn, 2003, p. 211-12) and the insurers have announced that this is the basis on which they will settle claims from now on. This is the rule that applies in cases of 'material contribution to injury' (see Holtby v Brigham & Cowan (Hull) Ltd [2003] 3 All ER 421) and it would be very odd if it were not also applied in cases of 'material contribution to risk'. As Mark and I wrote (p. 212):

"it should be recalled that the McGhee and Fairchild decisions already expose the defendant to a potential injustice in order to avoid a greater injustice to the claimant. Having once tipped the scales in the latter’s favour, it is surely going too far to do so again. If the House of Lords had not relaxed the rules of causation, the claimant would have recovered nothing at all and can hardly complain that the concession made to him does not go far enough. Furthermore, awarding full damages would be to heap further injustice on those defendants who (though we can never know it) did not contribute at all to the causal processes producing the disease in question."

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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