Mesothelioma is a cancerous tumour that is primarily caused by inhaling microscopic airborne
asbestos fibre. In the past decades, there have been plenty of lawsuits where mesothelioma
patients fought to claim compensation from their employers. As they were exposed to the
asbestos fibre during their course of employment, which consisted of hazardous working
environments with safety standards that were not up to par. Regardless, claimants of the sort
have been having difficulties in proving causation due to the technicalities in the traditional
approach, resulting in culpable employers being able to get away with their doing; or vice versa.
This paper shall examine the modified approach taken by the courts over the years for
mesothelioma cases.
Original Causation Test
In Cork v Kirby Maclean (1952), a simple test - the ‘but-for’ test was devised in order to assist
the courts in establishing a factual link between the negligent act and the harm suffered. As per
Lord Denning, the courts will consider whether, ‘but-for’ the negligent act, would the injury
have occurred? In Barnett v Chelsea and Kensington Hospital Management Committee (1969),
Nield J held that even if proper care and treatment were provided by the hospital, the deceased
would still have died anyway. Thus, the hospital’s breach of duty was not a ‘factual cause’ in the
defendant’s death. Though it is submitted that the test is nowhere near flawless as the claimant
will only have to prove fault on part of the defendant on a balance of probabilities and that
most of the time accidents would have happened anyway without the defendant’s fault.
PH Winfield in “The History of Negligence in Law of Torts” also raised the concern of the
‘but-for’ test being inadequate in certain scenarios such as in mesothelioma cases where there
may be multiple tortfeasors or potential causes. With medical evidence that is usually
indeterminate, the test might not necessarily assist in establishing the cause and instead, could
potentially lead to an unjust outcome.
Multiple Factors - Material Contribution Test
, Lord Reid in Bonnington Castings Ltd v Wardlaw (1956) held that when there are multiple
possible factors that may have caused the harm in question, the claimant would have to prove
on a balance of probabilities that the defendant had caused or materially contributed to the
injury. The complication of this test could be seen in Wilsher v Essex AHA (1988) where failing to
provide sufficient oxygen to the baby was only one of the five factors that could have caused
the baby to go blind. The test of material contribution i.e. a modified ‘but-for’ test was applied
here as per Lord Bridge, though the courts were unable to identify the exact factor that had
caused or had materially contributed to the blindness. Thus, the claim was unsuccessful.
Regardless, Waller LJ in Bailey v Ministry of Defence (2009) held that the material contribution
test is to be applied in cases with cumulative causes, and will be satisfied if it can be proven that
‘but for’ the contribution of the negligent act, the injury would probably not have occurred.
Material Increase in Risk Test
Though the aforementioned test seems satisfactory for medical negligence cases, it does not
seem to be the case for industrial illnesses caused by negligence. As these claimants are usually
unable to show that the defendant had materially contributed to their illness, but rather able to
show that the defendant had materially increased the risk of them getting ill. In McGhee v
National Coal Board (1973), the claimant had developed dermatitis due to two factors - the
unavoidable exposure to brick dust in his working environment and, the employer’s failure to
provide proper equipment which prolonged the exposure. It can be seen that albeit the
negligently prolonged exposure did not directly result in the illness, it had undoubtedly
increased the risk. Lord Reid however, refused to acknowledge the difference between material
contribution and a material increase in risk, though the claim was successful nonetheless.
Mesothelioma Cases
In the landmark case of Fairchild v Glenhaven Funeral Services Ltd (2002), Lord Rodger
contrasted with Lord Reid’s view where he stated that ‘it is inherently impossible for the
claimant to prove exactly how his injury was caused’. In this case, all three of the claimants were
exposed to asbestos during their course of employment, of which consist of different
asbestos fibre. In the past decades, there have been plenty of lawsuits where mesothelioma
patients fought to claim compensation from their employers. As they were exposed to the
asbestos fibre during their course of employment, which consisted of hazardous working
environments with safety standards that were not up to par. Regardless, claimants of the sort
have been having difficulties in proving causation due to the technicalities in the traditional
approach, resulting in culpable employers being able to get away with their doing; or vice versa.
This paper shall examine the modified approach taken by the courts over the years for
mesothelioma cases.
Original Causation Test
In Cork v Kirby Maclean (1952), a simple test - the ‘but-for’ test was devised in order to assist
the courts in establishing a factual link between the negligent act and the harm suffered. As per
Lord Denning, the courts will consider whether, ‘but-for’ the negligent act, would the injury
have occurred? In Barnett v Chelsea and Kensington Hospital Management Committee (1969),
Nield J held that even if proper care and treatment were provided by the hospital, the deceased
would still have died anyway. Thus, the hospital’s breach of duty was not a ‘factual cause’ in the
defendant’s death. Though it is submitted that the test is nowhere near flawless as the claimant
will only have to prove fault on part of the defendant on a balance of probabilities and that
most of the time accidents would have happened anyway without the defendant’s fault.
PH Winfield in “The History of Negligence in Law of Torts” also raised the concern of the
‘but-for’ test being inadequate in certain scenarios such as in mesothelioma cases where there
may be multiple tortfeasors or potential causes. With medical evidence that is usually
indeterminate, the test might not necessarily assist in establishing the cause and instead, could
potentially lead to an unjust outcome.
Multiple Factors - Material Contribution Test
, Lord Reid in Bonnington Castings Ltd v Wardlaw (1956) held that when there are multiple
possible factors that may have caused the harm in question, the claimant would have to prove
on a balance of probabilities that the defendant had caused or materially contributed to the
injury. The complication of this test could be seen in Wilsher v Essex AHA (1988) where failing to
provide sufficient oxygen to the baby was only one of the five factors that could have caused
the baby to go blind. The test of material contribution i.e. a modified ‘but-for’ test was applied
here as per Lord Bridge, though the courts were unable to identify the exact factor that had
caused or had materially contributed to the blindness. Thus, the claim was unsuccessful.
Regardless, Waller LJ in Bailey v Ministry of Defence (2009) held that the material contribution
test is to be applied in cases with cumulative causes, and will be satisfied if it can be proven that
‘but for’ the contribution of the negligent act, the injury would probably not have occurred.
Material Increase in Risk Test
Though the aforementioned test seems satisfactory for medical negligence cases, it does not
seem to be the case for industrial illnesses caused by negligence. As these claimants are usually
unable to show that the defendant had materially contributed to their illness, but rather able to
show that the defendant had materially increased the risk of them getting ill. In McGhee v
National Coal Board (1973), the claimant had developed dermatitis due to two factors - the
unavoidable exposure to brick dust in his working environment and, the employer’s failure to
provide proper equipment which prolonged the exposure. It can be seen that albeit the
negligently prolonged exposure did not directly result in the illness, it had undoubtedly
increased the risk. Lord Reid however, refused to acknowledge the difference between material
contribution and a material increase in risk, though the claim was successful nonetheless.
Mesothelioma Cases
In the landmark case of Fairchild v Glenhaven Funeral Services Ltd (2002), Lord Rodger
contrasted with Lord Reid’s view where he stated that ‘it is inherently impossible for the
claimant to prove exactly how his injury was caused’. In this case, all three of the claimants were
exposed to asbestos during their course of employment, of which consist of different
