Date: Michael Jones

From: Wed, 14 Feb 2007 18:13:29 +0000

Subject: Resurfice Corp. v. Hanke, 2007 SCC 7

Dear Robert,

We're just going to have to agree to differ (it was ever thus, Robert).

One point - Chaplin v Hicks does not help. If it were the answer, then loss of chance claims would be routine in the medical negligence context where the patient had a contractual claim. They aren't, and no-one suggested that the contract/tort distinction provides the explanation for this in Gregg v Scott (and though Hale was hard put to explain why she could claim against her solicitor for loss of chance but not against her doctor, she did not suggest that it was because the claim against the solicitor was in contract). Now you may say that Gregg v Scott should be revisited following Barker (and I would argue that, in any event, on close reading Gregg v Scott does not rule out lost chance claims in medical negligence - see Clerk & Lindsell on Torts, 19th ed, para 2-66 to 2-67) - my point, however, is that the outcome does not (as English law currently stands) depend on the contract-tort distinction. Incidentally, I presume that you would move all the employers' liability cases into the contract textbooks (we could even move the occupiers' liability cases on the basis that they are "equivalent to contract"). There is much to be said for this - it would certainly cut down my work when I have to produce a new edition of Textbook on Torts.

Michael

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Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool
L69 3BX

Phone: (0)151 794 2821
Fax: (0)151 794 2829
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From: Robert Stevens
Sent: Wed 14/02/2007 17:51
To: Jones, Michael
Subject: RE: ODG: Resurfice Corp. v. Hanke, 2007 SCC 7

The assumption in Fairchild upon which everyone proceeded was that the mesothelioma was (very) probably caused by only one of the defendants. That was why it was different from a cumulative condition such as asbestosis. The claimants could not prove which one. Fairchild is on all fours with Cook v Lewis.

Well, I don't think it was for the reasons I explained.

Additionally, in Fairchild there were multiple defendants (ie multiple people firing into the woods) not just two, and so the solution of reversing the burden of proof would not succeed in Fairchild, when it would in Cook v Lewis. So if D is employed by 5 employers for a period of 6 months each, if the exposure to asbestos dust is constant, each defendant employer can show on the balance of probabilities it was not him who was responsible for the outcome. It was not possible for either hunter in Cook to demonstrate this.

If you want to characterise the wrong committed by each defendant employer as a breach of contract, you still have to prove the causal connection to get beyond nominal damages for the breach (and there is still a concurrent tortious obligation to address).

True, but it is hornbook law that damages for loss of a chance, here the lost chance of avoiding mesothelioma, are available where the claimant bases his claim upon breach of contract: Chaplin v Hicks. Following Barker v Corus, that was what the victims were awarded.

For myself, I cannot see what other right the claimants could successfully have concurrently relied upon as against the employer. There was no concurrent liability question here as we do not have rights good against everyone not to lose the chance of avoiding harm. So, if a chemical factory leaks, increasing the number of cancer victims in a given population from 100 to 150, unless it can be identified who the additional cancer victims are, none have a claim. If the increase is from 100 to 201, all 201 have a claim, here for the total loss not just the lost chance of not developing cancer. What is sauce for the defendant goose is sauce for the claimant gander.

And in any event, even that analysis will not work for the claims brought against the negligent occupiers who were not employers.

True, which is why I was careful to confine my comments to the claim against employers. As against the occupier (Waddingtons?) I think the claim should also have succeeded because occupiers assume responsibility towards those they have invited on to their premises, again placing them in a different position from the plaintiff in Cook v Lewis. Thee relationship was equivalent to contract if you like. That is a much more difficult argument however, although see Lord Lloyd in Spring v Guardian Assurance.

Put another way, it is very important that we separate out the questions (1) what is the underlying right upon which the claim is based? and (2) what consequential loss can the claimant show he has suffered as a result of the violation of this right?

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