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

And McGhee was said to be derived from Bonnington Castings, and so it doesn't exist as a separate rule at all?

The practical position is that the litigation chaos that ensued post-Fairchild was such that outside of meso cases (or perhaps Scottish cyclists covered in brickdust), litigants today are not going to get very far relying on Fairchild. The judges had learned their lesson by the time of Greif. The road to hell is paved with good intentions, as one of the textbooks says.

I am not usually much in favour of legal realism, but in this context I am.

There are, of course, other (uncontroversial) related rules (such as where both D1 and D2 have wronged C but we cannot attribute which loss is caused by which wrong so that each is jointly liable) with which the Fairchild should not be confused.

R

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From: Laura Hoyano [laura.hoyano@law.ox.ac.uk]
Sent: 16 September 2014 18:52
To: Robert Stevens; Sarah Green; Wright, Richard; Neil Foster
Cc: obligations@uwo.ca
Subject: RE: ODG- causation, Fairchild cases, the CLA in Victoria

Might I remind everyone that the Fairchild doctrine was expressly derived from McGhee, which did not involve asbestos, but rather dermatitis, also with an evidential gap due to the limitations of medical science?

Laura

*************************************************************

Laura Hoyano

Associate Professor, Faculty of Law, University of Oxford

Senior Research Fellow in Law, Wadham College

Fellow of Middle Temple

Mailing address: Wadham College, Oxford, OX1 3PN

Email: laura.hoyano@law.ox.ac.uk

Direct line: (44)(0)1865 277 986

 

From: Robert Stevens [mailto:robert.stevens@law.ox.ac.uk]
Sent: 16 September 2014 15:59
To: Sarah Green; Wright, Richard; Neil Foster
Cc: obligations@uwo.ca
Subject: Re: ODG- causation, Fairchild cases, the CLA in Victoria

 

Wouldn't a better name for the 'rule' be 'the mesothelioma rule', rather than the 'Fairchild exception'?

 

Good luck getting any court to apply it in England outside of that context today. 

 

Such a name would give a better indication of both its current scope and importance. It would also stop counsel from citing it in every hopeless case.

 

If lawyers name a rule after a case it can be guaranteed that we don't actually know what it is.

 

Unfortunately, few would bother writing a book about that.

 

Sarah Green's Causation in Negligence is currently available in all good bookshops 

 

http://www.hartpub.co.uk/books/details.asp?isbn=9781849463317

 

R

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From: Sarah Green [sarah.green@st-hildas.ox.ac.uk]
Sent: 16 September 2014 15:17
To: Wright, Richard; Neil Foster
Cc: obligations@uwo.ca
Subject: RE: [Spam?] Re: ODG- causation, Fairchild cases, the CLA in Victoria

Neil is right - the Fairchild exception is certainly not synonymous with Bonnington-type orthodox causation principles. 

 

In Fairchild itself, liability retained a semblance of But For justification in the aggregate sense – ie given that the damage would not have happened But For at least one defendant, imposing liability was deemed a better option than allowing the loss to fall on the claimant.  This link, tenuous as it is, was severed in subsequent decisions, and Fairchild liability as it exists post-Sienkiewicz bears no resemblance whatsoever to But For causation.

Confused stuff.

Someone should write a book on it.

 

Best wishes,

 

Sarah

 

From: Wright, Richard [mailto:rwright@kentlaw.iit.edu]
Sent: 16 September 2014 14:02
To: Neil Foster
Cc: obligations@uwo.ca
Subject: [Spam?] Re: ODG- causation, Fairchild cases, the CLA in Victoria

 

Thanks, Neil.

 

Note that in paragraphs 34 to 37 the respondent and the court as well as the appellant treated a material increase in risk as sufficient to establish factual causation under section 51(1), which literally requires "but for" causation.

 

Note that in paragraphs 46 and following concerning section 51(2) and the "evidentiary gap," the language seems to include overdetermined causation by non-but-for causes rather than the usual evidentiary gap situation (alternative causation: e.g., two negligent hunters firing with a single pellet injury to the plaintiff, or successive collision cases). 

 

Note in footnote 37 and the accompanying text the treatment of a NESS condition (not necessary for the result but necessary for the sufficiency of a sufficient set) as a "necessary condition".

 

Confusion regarding the nature and criteria for proving causation continues to run rampant in the Commonwealth, including the UK and Canada as well as Australia.

 

- Richard

 

On Mon, Sep 15, 2014 at 8:31 PM, Neil Foster <neil.foster@newcastle.edu.au> wrote:

Dear Colleagues;

For those who are following causation cases, Powney v Kerang and District Health [2014] VSCA 221 (11 September 2014) http://www.austlii.edu.au/au/cases/vic/VSCA/2014/221.html  is very interesting. The Victorian Court of Appeal address the issue of how to interpret the “Fairchild clause” in the Australian Civil Liability Acts (if I can use the generic term) dealing with causation. When the CLA’s were enacted following the Ipp Report, as well as adopting a more explicit approach to causation generally (following some of Professor Stapleton’s work), the legislation often included a separate clause which seems to have been designed to cater for the possibility that Fairchild-type “increased risk” causation would be recognised in Australia. In Victoria this was represented by s 51(2) of the Wrongs Act 1958 (Vic):

 

 (2)     In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

 

The NSW equivalent is s 5D(2) of the CLA 2002 (NSW), virtually identical except that it uses the word “exceptional” instead of “appropriate”. In this Victorian decision the plaintiff’s counsel, realising he didn’t have a very strong “but for” case on causation, argued that he ought to have been able to leave to the jury the question whether this was an “appropriate” case for s 51(2) to operate to create causation even in the absence of “but for”.

Sensibly the trial judge declined the invitation to leave the issue to the jury, and the CA has now said that he was right to do so. Whatever s 51(2) means, the determination of when a case is “appropriate” for the clause to be applicable is an issue of law, not a factual question, and not to be left to the jury in that form. In general the Vic CA here, in my view, gives a good review of the background and summary of the present law on causation in Australia. Fairchild has not been adopted here; while it has never formally been ruled on by the High Court, passing comments in various decisions seem pretty clear that the “but for” test for causation, which includes “material contribution to harm” where there is more than one cause, is the appropriate test, and a Fairchild “material increase in risk” criterion has not been accepted (and in my view is unlikely to be accepted in the future.) Hence in my view clauses like s 51(2), and NSW s 5D(2), which were passed “for abundant caution” in case the law should change, should generally be read as not operative and would be better repealed as only causing confusion.

Long term ODG colleagues will know that I can’t pass up the opportunity to say that these clauses are not, contrary to suggestions made here [due to the confusing comments, in my view, of the Ipp Committee], necessary to deal with “material contribution to cause” claims like Bonnington Castings. Material contribution as evidenced in Bonnington is a perfectly straightforward principle that an event can be caused by more than one preceding event, and that anyone responsible in way for one those preceding events (in the absence of which the harm would not have occurred), which is not de minimis, can he held accountable at common law. In Bonnington cases “but for” causation is satisfied; they are not an exception to “but for”. See paras [59]-[60] here where the Vic CA correctly point out that Bonnington has been accepted as perfectly orthodox in Australia, but Fairchild has not. On the other hand I have to concede that dicta can be found, here and in the High Court, disagreeing with me. But in my view they stem from people not reading Bonnington carefully enough!

Regards

Neil