---

From: Robert Stevens <robert.stevens@ucl.ac.uk>
To: James Lee <j.s.f.lee@bham.ac.uk>
Cc: "obligations@uwo.ca" <obligations@uwo.ca>
Sent: Wed, March 9, 2011 1:25:34 PM
Subject: Re: UK Supreme Court Decision on Causation


My view is that Lord Brown’s judgment is the one to read if you want to
understand the mess English (and Scottish) law has managed to get itself
into. The lesson for other legal systems is quite clear. A defendant
should only be liable for negligently injuring another if it can be shown
on the balance of probabilities that that injury would not have occurred
but for the defendant’s negligence. Depart from that basic principle at
your peril.

The case concerns whether the “Fairchild exception”, as it applies to
mesothelioma, applies in cases where only one defendant is proved to have
exposed the victim to asbestos, but she was also at risk of developing the
disease from low-level exposure to asbestos in the general atmosphere. The
Supreme Court hold unanimously that it does. Proof that the injury would
not have happened but for the defendant’s negligence was unnecessary.

The CA had ducked the interesting questions by saying that in mesothelioma
cases the Compensation Act, s3 provided that if a defendant materially
increases the risk of mesothelioma he is liable in full for the injury. I
had expected the Supreme Court to similarly read the Act expansively and
thereby avoid the knotty questions. In fact they did not do so and hold
(unimpeachably on the wording) that section 3 only applies where the
defendant is liable for a tort. Whether the defendant is liable for a tort
is a question still answered by the common law, requiring an extensive
consideration of general principle and the prior caselaw.

Now, although it was just about arguable that Fairchild should be confined
to cases where there were multiple defendants, and that the reason the
claim would fail on ordinary principles was because of multiple negligent
exposures by different defendants [105]. This explanation for the rule was
inconsistent with the prior case of McGhee (where there was but one
possible defendant) on which Fairchild was based. Although Barker had
provided that liability for the tort should be determined upon the basis
of an aliquot share, s 3 Compensation Act requires that if a defendant is
liable, he is liable in solidium for the entire injury.

So, why are the mesothelioma cases different, and what is the scope of the
Fairchild exception? Statements in Fairchild and Barker had sought to
confine the exception to ‘single agent’ cases. This is no longer the
explanation.

Lord Phillips at 98-106 seeks to explain that mesothelioma is ‘special’
because of the gaps in our evidence as to how it is triggered. If these
uncertainties were to be cured by future evidence which filled the
scientific gaps in our knowledge, the mesothelioma exception would
disappear. On this view (a version of which seems to me to be adopted by
the majority) if there were another disease in relation to which the same
uncertainties were shown, the Fairchild exception could apply. Lords
Rodger, Dyson, Mance, Kerr and Lady Hale all seem to me to be adopting an
explanation along these lines.

Lord Brown is, to my mind, more satisfyingly robust, confining the
exception to mesothelioma cases and making it clear that any litigant who
tried to apply it outside of that context will get short shrift ([187]).
Practically, if I were advising someone, that would be my judgment. This
means we can put Fairchild, Barker, Greif, and the Compensation Act into a
box marked “mesothelioma” and forget about them. (We are doing students a
disservice by making them read them all.)

The problem with the Lord Phillips view is that I fail to see why the
evidential uncertainty, which there without doubt is in mesothelioma
cases, makes it a special case. All of the, no doubt interesting,
scientific evidence in this case does seem to me to show that there is a
“rock of uncertainty” about what and who caused the disease. However, this
is a common case. Indeed, there is *more* probative evidence indicating
what and who caused the mesothelioma than is commonly available in many
standard cases courts deal with on a day to day basis. In Hotson there
was, in my view, an even more insurmountable “rock of uncertainty”.

Indeed if, as is claimed, the rock of uncertainty is so serious as to be
incapable of being overcome, why was it thought possible to overcome it
for purposes of apportionment in Barker v Corus? (At base, I think Grief
is inconsistent with Barker – Lord Rodger has won in the end). How is the
rock to be circumvented where it is sought to show that the contribution
of the defendant’s carelessness is so insignificant so as not to count for
the purposes of the Fairchild exception?

Some other points.

1.    Lord Phillips is flat wrong to think that Bonnington Castings was an
exception to “but for” test. It is not, as Lord Brown explains.
2.    Was it really necessary to review, yet again every single House of
Lords decision on this topic from Bonnington Castings onwards? That said,
he does it well and students might be well advised to read his speech
carefully, rather than every case in full.
3.    There is an interesting, if inconclusive dispute as to whether
statistical evidence alone can be used to establish causation. Lord Rodger
seems to argue that is not enough to show on the balance of probabilities
that D probably injured C. It must be shown on the balance of
probabilities that D injured C.
4.    Lord Phillips suggests (at [105]) another exception to “but for” in a
situation where a number of defendants each possibly caused the wrongful
injury but it is impossible to pinpoint which one.


Rob

> Dear Members,
>
> The UK Supreme Court has this morning handed down an important decision on
> causation in the conjoined appeals of Sienkiewicz v Greif (UK) Limited;
> Knowsley Metropolitan Borough Council v Willmore [2011] UKSC 10
> http://www.supremecourt.gov.uk/docs/UKSC_2009_0219_Judgment.pdf. The
> Court, in several speeches, considers the Fairchild exception, the effect
> of s 3 of the Compensation Act 2006 (a messy legislative intervention),
> how 'material' a material contribution to risk has to be, and the
> purported 'doubling of risk' rule. There are more general observations
> about causation, and about the value of epidemiological evidence. Lord
> Rodger's opinion is particularly worth reading. The Court dismissed both
> appeals, so the claims succeeded in both cases. The decision will be of
> considerable interest to many colleagues on this list.
>
> Best wishes,
>
> James
>
> --
> James Lee
> Lecturer and Director of Careers
> Academic Fellow of the Inner Temple
> Birmingham Law School
> University of Birmingham
> Edgbaston
> Birmingham
> B15 2TT, United Kingdom
>
> Tel: +44 (0)121 414 3629
> E-mail: j.s.f.lee@bham.ac.uk
>


--
Robert Stevens
Professor of Commercial Law
University College London