(i) The "evidential undertainty" problem which arises in these cases is a
different problem from the "multiple sufficient cause" problem. The former
is what Fairchild and Greif etc concern. The latter doesn't exist when the
law is properly understood. What the CA had said about Bonnington Castings
was just as wrong as what Lord Phillips said. That will indeed have to go
back to the Supreme Court and be sorted out. See Lord Brown and Stephen
Bailey's excellent article. I don't think that is as insoluble as the
Fairchild/McGhee misstep.

(ii) It follows that Mackie (who is talking about multiple sufficient
causes) doesn't lend any support to the error made by the CA, wholly
unsurprisingly.

To recap, Mackie's answer to the multiple sufficient cause 'problem' is to
say "the inability to build was caused by the lack of bricks and mortar".
I deny that there is anything illogical about saying "A and B caused C but
neither A nor B alone".

However, that answer is simply of no relevance to the law where we claim
against the suppliers of bricks and mortar individually. This, however,
presents the law with no problem. If a loss would not have been suffered
but for the commission of one or more wrongs, each wrongdoer is jointly
liable for the loss, even if in respect of each wrong individually the
loss would have been suffered anyway because of the wrong of someone else.
R






> But, Neil, the EWCA believes that Bonnington is an exception to the
> but-for test
> - Bailey v The Ministry of Defence  [2008] EWCA Civ 883 at [43], [46] and
> it
> certainly didn't resile from that in Ministry of Defence v AB [2010] EWCA
> Civ
> 1317 at [133]-[134], [149]-[150]. You noticed, no doubt, that neither of
> Lord
> Phillips or Lord Brown referred to these to cases.
>
> As to what that exception is, it is, to me, some sort of material
> contribution
> exception which makes no sense. 
>
> But, since John Mackie has been mentioned, I point out that, at least to
> me, the
> Bonnington exception principle as described in  Bailey amounts to
> Mackie's
> aggregate but-for: not just A, not just B, but (somehow) A + B (without
> more).
>
> Paras [43]-[44] of Bailey
>
> [43] It seems to me thus respectfully that Lord Rodger in Fairchild
> accurately
> summarises the position when he says in paragraph 129 that in the
> cumulative
> cause case such as Wardlaw the 'but for' test is modified.
>
>
> [46] In my view one cannot draw a distinction between medical negligence
> cases
> and others. I would summarise the position in relation to cumulative cause
> cases
> as follows. If the evidence demonstrates on a balance of probabilities
> that the
> injury would have occurred as a result of the non-tortious cause or causes
> in
> any event, the claimant will have failed to establish that the tortious
> cause
> contributed. Hotson exemplifies such a situation. If the evidence
> demonstrates
> that 'but for' the contribution of the tortious cause the injury would
> probably
> not have occurred, the claimant will (obviously) have discharged the
> burden. In
> a case where medical science cannot establish the probability that 'but
> for' an
> act of negligence the injury would not have happened but can establish
> that the
> contribution of the negligent cause was more than negligible, the 'but
> for' test
> is modified, and the claimant will succeed.
>
>
> Cheers,
>
> David
>
>
>
>
> ________________________________
> From: Neil Foster <Neil.Foster@newcastle.edu.au>
> To: Robert Stevens <robert.stevens@ucl.ac.uk>
> Cc: James Lee <j.s.f.lee@bham.ac.uk>; "obligations@uwo.ca"
> <obligations@uwo.ca>
> Sent: Thu, March 10, 2011 6:15:31 PM
> Subject: Re: UK Supreme Court Decision on Causation
>
> Dear Colleagues;
> Just to return to the intial discussion about the Sienkiewicz v
> Greif decision
> (after Richard's somewhat Yoda-like response to Rob on the broader
> philosophical
> issues)- I would like to say how much I am in furious agreement with Rob's
> analysis of the case. From the perspective of an Australian lawyer, this
> decision is certainly yet one more reason for the HCA to politely decline
> to
> follow Fairchild and Barker when it eventually comes across a case in
> which it
> has to do so. Clearly most of the current members of the UK Supreme Court
> find
> the "exceptionalism" of Fairchild more than faintly embarrassing. 
> I would also like to support, of course, Rob's comment that 
>
> Lord Phillips is flat wrong to think that Bonnington Castings was an
>>exception to “but for” test. It is not, as Lord Brown explains.
> I won't bore list members with the detailed reasons again but remind you
> that
> there is a good piece that spells out why this is so in  S H Bailey,
> “Causation
> in negligence: what is a material contribution?” (2010) 30/2 Legal
> Studies 167-185.
> Finally, the comments of the court about the limits of epidemiological
> evidence
> seem to echo very helpful comments that were made a few years ago
> by Spigelman
> CJ in  Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v
> McGuiness[2000] NSWCA 29, esp [78]-[98].
> Regards
> Neil
>
> On 10/03/2011, at 5:25 AM, Robert Stevens wrote:
>
>
>>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
>
>
>
> Neil Foster,
> Senior Lecturer,
> Deputy Head of School & LLB Program Convenor,
> Newcastle Law School,
> Faculty of Business & Law.
> MC158, McMullin Building,
> University of Newcastle, Callaghan NSW 2308 AUSTRALIA 
> ph 02 4921 7430
> fax 02 4921 6931
> http://www.newcastle.edu.au/staff/profile/neil.foster.html
> http://works.bepress.com/neil_foster/


--
Robert Stevens
Professor of Commercial Law
University College London