* [Tort seminar 3 – breach of duty and causation] *
Tort of Negligence
Core Reading:
• P Giliker, Tort (6th ed., Sweet & Maxwell, 2017), chapters 5 and 6
• Bonnington Castings v Wardlaw [1956]
Facts: Cl had pneumoconiosis (chronic lung condition). He stated that during the course of his
employment he was exposed to ‘innocent’ dust (ordinarily present) AND ‘guilty’ dust (as a result of
employers’ negligence). Issue was that there were potentially two causes for his illness – a
negligent cause and a non-negligent cause.
Held: Claim succeeded. Cl did not have to show the negligent dust was the sole or even the main
cause of damage, as long as he could show on the balance of probabilities that it had ‘materially
contributed’ to the damage. Anything which was not de minimis (i.e. negligible) could be a
'material' contribution.
• Fairchild v Glenhaven Funeral Services Ltd [2002]
Facts: Cls had been negligently exposed to asbestos in the workplace by more than one employer
and consequently developed mesothelioma. Medical science had suggested that the disease could
be triggered by just one asbestos fibre in the wall of the lung. It was impossible to show which
employer had caused the disease.
Held: Claim succeeded, the HOL stated that cl has done enough to prove causation if they can show
that the negligence of D materially increased the risk of mesothelioma. (They revived the test from
Magee – it is enough to show the negligence increased the risk of harm)
• Barker v Corus (UK) plc [2006]
Facts: Facts were very similar to Fairchild, but one variation – one of the claimants admitted that
when he was self-employed, he was also exposed to asbestos – question: did that variation many
any difference? (Held: No)
Held: Claim succeeded, the slight variation was not a significant difference, you could still apply the
material increase of risk test, and so causation was established.
• Sienkiewicz v Greif (UK) Ltd [2011]
Facts: Cl had contracted mesothelioma and sued D for contributing towards it. The defendant was
only 18% to blame for the initial exposure.
Held: Claim succeeded. Full damages were awarded to one defendant as damages are not to be
apportioned in mesothelioma cases according to the Compensation Act 2006, s 3.
• Novartis Grimsby Ltd v Cookson [2007]
Facts: Cl worked for D where dyestuffs were manufactured. He then developed bladder cancer and
brought a claim against D, alleging that he had been exposed to carcinogenic aromatic amines
which caused the cancer. There were two potential causes – those working conditions, or his
smoking.
Held: Claim succeeded. Causation was established as Cl had been exposed to dust in the early years
of his employment. Affirmed on appeal. The exposure to these amines constituted a breach of duty,
and as such had made a material contribution to the development of bladder cancer.
Discussion: Usually, you cannot prove what has caused cancer, however on these particular facts
the employer’s negligence had more than doubled the risk – the chemicals presented 70% of the
risk of bladder cancer. You need statistical evidence to prove – if the scenario has no statistics, you
are unlikely to need to refer to it.
Tort of Negligence
Core Reading:
• P Giliker, Tort (6th ed., Sweet & Maxwell, 2017), chapters 5 and 6
• Bonnington Castings v Wardlaw [1956]
Facts: Cl had pneumoconiosis (chronic lung condition). He stated that during the course of his
employment he was exposed to ‘innocent’ dust (ordinarily present) AND ‘guilty’ dust (as a result of
employers’ negligence). Issue was that there were potentially two causes for his illness – a
negligent cause and a non-negligent cause.
Held: Claim succeeded. Cl did not have to show the negligent dust was the sole or even the main
cause of damage, as long as he could show on the balance of probabilities that it had ‘materially
contributed’ to the damage. Anything which was not de minimis (i.e. negligible) could be a
'material' contribution.
• Fairchild v Glenhaven Funeral Services Ltd [2002]
Facts: Cls had been negligently exposed to asbestos in the workplace by more than one employer
and consequently developed mesothelioma. Medical science had suggested that the disease could
be triggered by just one asbestos fibre in the wall of the lung. It was impossible to show which
employer had caused the disease.
Held: Claim succeeded, the HOL stated that cl has done enough to prove causation if they can show
that the negligence of D materially increased the risk of mesothelioma. (They revived the test from
Magee – it is enough to show the negligence increased the risk of harm)
• Barker v Corus (UK) plc [2006]
Facts: Facts were very similar to Fairchild, but one variation – one of the claimants admitted that
when he was self-employed, he was also exposed to asbestos – question: did that variation many
any difference? (Held: No)
Held: Claim succeeded, the slight variation was not a significant difference, you could still apply the
material increase of risk test, and so causation was established.
• Sienkiewicz v Greif (UK) Ltd [2011]
Facts: Cl had contracted mesothelioma and sued D for contributing towards it. The defendant was
only 18% to blame for the initial exposure.
Held: Claim succeeded. Full damages were awarded to one defendant as damages are not to be
apportioned in mesothelioma cases according to the Compensation Act 2006, s 3.
• Novartis Grimsby Ltd v Cookson [2007]
Facts: Cl worked for D where dyestuffs were manufactured. He then developed bladder cancer and
brought a claim against D, alleging that he had been exposed to carcinogenic aromatic amines
which caused the cancer. There were two potential causes – those working conditions, or his
smoking.
Held: Claim succeeded. Causation was established as Cl had been exposed to dust in the early years
of his employment. Affirmed on appeal. The exposure to these amines constituted a breach of duty,
and as such had made a material contribution to the development of bladder cancer.
Discussion: Usually, you cannot prove what has caused cancer, however on these particular facts
the employer’s negligence had more than doubled the risk – the chemicals presented 70% of the
risk of bladder cancer. You need statistical evidence to prove – if the scenario has no statistics, you
are unlikely to need to refer to it.
