W4 C3 – CAUSATION
READINGS:
* McBride and Bagshaw, pp 255-297, 302-310
* Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32
Barker v Corus plc [2006] UKHL 20, [206] 2 AC 572
Compensation Act 2006, s 3
Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229
Durham v BAI (Run Off) Ltd [2012] UKSC 14, [2012] 1 WLR 867 at [51]-[74], [77]-[86], [91]-[103],
[115]-[137]
Williams v Bermuda Hospitals Board [2016] UKPC 4, [2016] AC 888
* Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176
Optional further reading
Stapleton, ‘Cause-in-Fact and the Scope of Liability for Consequences’ (2003) 119 LQR 389
Reece, ‘Loss of Chances in the Law’ (1996) 59 MLR 188
The Two Shooters, McBride and Bagshaw
QUESTIONS:
1. What is ‘but for’ causation? What is the thinking behind this test? What was the
problem posed by the but for test in Fairchild?
Would C have suffered BUT FOR D’s breach?
Multiple but for causes can exist in tort; no such thing as a single factual cause.
Divisible injuries; injuries could’ve happened differently.
Fairchild v Glenhaven: Workers exposed in asbestos-related places, meaning excess
exposure increased their risk of suffering from mesothelioma. The employers were
sued in negligence, but the problem was that the workers had different employers
throughout their work life. THE BUT FOR TEST GIVES A FALSE NEGATIVE IN THIS CASE
EVEN IF WE KNOW ONE OF THE EMPLOYERS WAS NEGLIGENT, BECAUSE WE
CANNOT EASILY ESTABLISH THE MAIN REASON WHY THE WORKERS GOT
MESOTHELIOMA (i.e. would the worker have contracted mesothelioma but for the
employer(s) negligence?).
2. In Fairchild the defendants were held liable on the basis that their breaches made a
material contribution to the risk of the claimant suffering the relevant harm. What is a
material contribution to risk? Is material contribution to risk available as an alternative
way of establishing causation wherever the but for test cannot be satisfied? If not, when
can it be used?
A material contribution to a risk is the risk of injury materialised by the negligence of
the defendant(s).
READINGS:
* McBride and Bagshaw, pp 255-297, 302-310
* Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32
Barker v Corus plc [2006] UKHL 20, [206] 2 AC 572
Compensation Act 2006, s 3
Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229
Durham v BAI (Run Off) Ltd [2012] UKSC 14, [2012] 1 WLR 867 at [51]-[74], [77]-[86], [91]-[103],
[115]-[137]
Williams v Bermuda Hospitals Board [2016] UKPC 4, [2016] AC 888
* Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176
Optional further reading
Stapleton, ‘Cause-in-Fact and the Scope of Liability for Consequences’ (2003) 119 LQR 389
Reece, ‘Loss of Chances in the Law’ (1996) 59 MLR 188
The Two Shooters, McBride and Bagshaw
QUESTIONS:
1. What is ‘but for’ causation? What is the thinking behind this test? What was the
problem posed by the but for test in Fairchild?
Would C have suffered BUT FOR D’s breach?
Multiple but for causes can exist in tort; no such thing as a single factual cause.
Divisible injuries; injuries could’ve happened differently.
Fairchild v Glenhaven: Workers exposed in asbestos-related places, meaning excess
exposure increased their risk of suffering from mesothelioma. The employers were
sued in negligence, but the problem was that the workers had different employers
throughout their work life. THE BUT FOR TEST GIVES A FALSE NEGATIVE IN THIS CASE
EVEN IF WE KNOW ONE OF THE EMPLOYERS WAS NEGLIGENT, BECAUSE WE
CANNOT EASILY ESTABLISH THE MAIN REASON WHY THE WORKERS GOT
MESOTHELIOMA (i.e. would the worker have contracted mesothelioma but for the
employer(s) negligence?).
2. In Fairchild the defendants were held liable on the basis that their breaches made a
material contribution to the risk of the claimant suffering the relevant harm. What is a
material contribution to risk? Is material contribution to risk available as an alternative
way of establishing causation wherever the but for test cannot be satisfied? If not, when
can it be used?
A material contribution to a risk is the risk of injury materialised by the negligence of
the defendant(s).
