Apologies also for repeating myself. I agree completely with Neil (and others) that 'material contribution' or 'cause or contribute' should not be used to refer to mere increase in risk, as some courts have done, but rather only to actual causal contribution. Such contribution exists when the but-for test is satisfied, as applied to the particular conduct or condition at issue. It also exists in situations in which the but-for test is not satisfied, but the NESS test (of which the but-for test is a corollary) is satisfied, as applied to the particular conduct or condition at issue. (The attempted dodge of applying the but-for test to the aggregate competing conditions, as Neil has stated twice, is conceptually and descriptively erroneous. E.g., if a flood destroys a house that would have been destroyed by an approaching fire (quenched by the flood) at exactly the same time, the flood was a cause, the fire was not. Neil's aggregate but-for test would treat both as causes.). That is what the court in Amaca is correctly stating, while also correctly stating that proof of factual causation (normally) is the threshold proof requirement (sometimes adjusted, e.g., by reversing the burden of proof), prior to asking questions about attributable responsibility ('legal causation', 'proximate causation', scope of liability). As multitudes of cases demonstrate, nothing but confusion follows from failing to distinguish these two issues (which, by the way, Hart and Honore did distinguish, while claiming that both were factual 'causation' issues).

From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
Sent: Sun 12/18/2011 4:59 PM
To: Goldberg, Dr Richard S.
Cc: Sandy Steel; Robert Stevens; Wright, Richard; David Cheifetz; obligations@uwo.ca
Subject: Re: ODG: Amaca v Booth- HCA on causation in asbestos cases

Dear Richard G, Sandy and other colleagues;

I don't want to keep circling the same issue all the time, but I really can't let these last two remarks go unchallenged. Why is it "unhelpful" to characterise the case as what it actually was? By perpetuating the myth that there is something "extra" added to causation by Bonnington we allow the sort of odd comments that David has cited from the Canadian courts to continue, and also the mis-understanding of the phrase "material contribution" which has been repeated at the highest levels. True, we may want to reanalyse the facts through the lens of later cases dealing with apportionment. But that is not what the decision itself does. (And of course there was no sense in discussing apportionment in the case, because all the relevant sources of harm, both "guilty" and "innocent", were under the control of the one defendant.)

With respect, to say that the case is "a mitigation of the strict application of the but for test" is just not true. The "but for" test was applied. "But for" the combined effect of the two types of dust the disease would not have happened. It has never been a correct analysis of the "but for" test to say that you need to identify only a single, or even a "substantial", cause. Applying the test in this case is not mitigating anything, it is just applying the test.

In the decision (which, in case colleagues don't have ready access to the official reports, is also available at http://www.bailii.org/uk/cases/UKHL/1956/1.html ) Lord Reid is clear that he is rejecting any view that a "mere possibility" of harm can establish causation: He says that Parliament cannot have intended

that any employee suffering injury can sue his employer merely because there
was a breach of duty and it is shown to be possible that his injury may
have been caused by it. In my judgment, the employee must in all cases
prove his case by the ordinary standard of proof in civil actions: he must
make it appear at least that on a balance of probabilities the breach of duty
caused or materially contributed to his injury.

This comment makes perfect sense so long as one steadfastly reminds oneself that when his Lordship says "causes or materially contributed" he means "was either the sole cause of, or was one of a number of causes of". It makes no sense at all if his Lordship was intending in some way to "adjust" the ordinary "but for" test.

Incidentally I note that in Amaca v Booth the High Court at [70] cite one of the first occurrences of the phrase "cause or materially contribute" as being in the judgement of Lord Watson in Wakelin v London and South Western Railway Co (1886) 12 App Case 41 at 47. That was a case where the plaintiff's husband had been found dead on a level crossing but she could not produce any evidence to show that carelessness on the part of the railway company had caused the accident. Lord Watson at 47 clearly uses the phrase "material contribution" as a synonym for "cause". He says, for example, that the question of liability depends on whether "there was some negligent act or omission on the part of the company or their servants which materially contributed to the injury or death complained of". Later on the same page he then says: "the plaintiff must allege and prove, not merely that [the defendants] were negligent, but that their negligence caused or materially contributed to the injury". The phrase "materially contributed" is essentially epexegetical, explaining what he means by "caused". It is not a different test.

Regards

Neil

On 19/12/2011, at 8:37 AM, Goldberg, Dr Richard S. wrote:

In my view, the best way to describe Bonnington is not as a but-for causation case (which I agree with Sandy is unhelpful), but as a mitigation of the strict application of the but for test.

Richard

Dr Richard Goldberg
Reader in Law
School of Law
Taylor Building
King's College
University of Aberdeen
Old Aberdeen
AB24 3UB
Tel: 012224 272745
________________________________________
From: Sandy Steel [as730@hermes.cam.ac.uk] On Behalf Of Sandy Steel [as730@cam.ac.uk]
Sent: 18 December 2011 19:16
To: Robert Stevens
Cc: Wright, Richard; Neil Foster; David Cheifetz; obligations@uwo.ca
Subject: RE: ODG: Amaca v Booth- HCA on causation in asbestos cases

To say Bonnington is a but-for causation case is in itself unhelpful.

It is necessary (as ODG-ers have pointed out) to define the damage in
respect of which but-for causation was established.

The happiest interpretation would then be Rob's: D's breach of duty caused
some segment of the overall damage, because the breach made the disease
worse in extent. But, since apportionment wasn't before the HL, C succeeded
in full.

But the judgments are just ambiguous with regard to that view of the causal
mechanism. This theory that "the more you are exposed, the worse the extent
of your injury" was stated by counsel in the Court of Session, but it's not
clearly accepted by the judges in the HL (even if in 2011 we know that this
is the mechanism).

Lord Keith says that the disease probably wouldn't have happened when it
did but for D's breach. If the above causal mechanism was assumed, then
this would be an odd thing to say (even if logically consistent with such a
view of the mechanism). It also makes the defender's argument that the
disease would have happened anyway look pretty much incomprehensible if
that was the disease mechanism assumed.

My nit-picking point is that Rob is right, but in the HL this was not for
the reason that the disease is made cumulatively worse by exposure. Rather
the disease was treated as indivisible, but its occurrence was accelerated
by D's breach. (This is a pretty fine point). As Bailey in LS 2010 points
out, it should then have been the case that C recovers only for the loss up
to the point where the indivisible injury would have occurred anyway. That
question was not addressed, and so C recovered in full.

Even if you could take from Bonnington that D was a cause of the over-all
disease even if D's breach did not accelerate the contraction of the
disease (and this becomes a logically possible interpretation if the
disease was treated as indivisible), it still remains to ask whether the
disease would have happened anyway (whether you treat this as a causal
(Rob) or non-causal (Richard, David) issue. And it's for that reason,
namely, that, on whatever view, you need to ask a further question to
determine the extent of liability, and that question was not asked in
Bonnington, that the case should not be cited for anything like what it was
in Bailey v MoD.

Sandy

On Dec 18 2011, Robert Stevens wrote:

However, there was no finding that it

was necessary for the disease, per se, rather than only for(theoretically

separable) increments in severity, under Rob's theory, in which case the

defendant should only be liable, under the but-for test, for those

increments?

Yes. The question of quantum of liability was not before the court.The HL

in Bonnington Castings made no apportionment because the only quiestion

argued before them was one of liability, not quantification. When the

question of quantification has been argued in equivalent cases of

increments in severity, an apportionment has, rightly, been made (eg

Holtby v Brigham [2000] 3 All ER 421).

Nobody would still be citing Bonnington Castings if it had not been cited

for a proposition for which it did not stand in McGhee.

Rob

The University of Aberdeen is a charity registered in Scotland, No SC013683.

Neil Foster
Senior Lecturer
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/

From:	Wright, Richard <Rwright@kentlaw.edu>
To:	obligations@uwo.ca
Date:	19/12/2011 17:04:10 UTC
Subject:	RE: ODG: Amaca v Booth- HCA on causation in asbestos cases