#19871 - Probabilities And Fairchild Exception In Causation - Tort Law

More Complex Causation – Exposure to Risk

The Standard Approach to Lack of Evidence: Balance of Probabilities

McGhee v National Coal Board difficulties with ‘but for’ test – don’t really know what would have happened but for the failure to provide showers. So, in physical injury cases, courts ask is it more likely than not that there would be no damage but for D’s tort.

Example: in Chester v Afshar, D negligently failed to tell C there was a 1-2% chance of nerve damage if she got an operation. C took the operation and was unlucky. It was established but for the doctor failing to mention the risk, (ie doctor told C), C would have had an operation on a different day where there was a fresh 98-9% chance of no damage. So if the doctor did not breach his duty of care, it was more likely than not C would be fine.

A messier example is Hoston v East Berkshire HA. C sustained a hip injury and a doctor negligently failed to identify the injury. C was later permanently disabled. We don’t know if C had been treated, he wouldn’t be disabled, but we knew that if the injury had damaged more than x% of the blood vessels in C’s hip, the doctor could not have saved him. Question now is was there a >50% chance this was the case? Answer was yes – hospital couldn’t have saved him anyway. So, claim failed as no causation of damages.

There may be maths involved. A hypothetical in Hoston attributed probabilities to McGhee. 70/100 people get dermatitis when the employer didn’t provide showers. 30/100 got it despite the showers. This means of the people who got it, 40/70 were saved by the showers. Therefore it is more likely than not that if there had been showers, the claimant would not have gotten dermatitis liability.

But UKSC said in Sienkiewicz v Grief stats can’t be used to prove an event happened – their example was 3 yellow taxis and 1 blue one operated in a town. A taxi, we don’t know the colour, knocked over a pedestrian. We cant assume it was a yellow one.

However, the Canadian Cook v Lewis case showed an issue with the more than likely approach. Two hunters had shot at a sound in a bush – turned out it was a person – and one had hit him. We don’t know who. But for one of the hunters shooting, there was a 50% chance it was the other one so the claim would have failed on the standard approach. The Canadian Supreme Court said we’ll make an exception and held both hunters fully liable. HL agreed in Fairchild v Glenhaven Funeral Services.

The Fairchild Exception

The facts of Fairchild were that C was employed by employer A then employer B. Both had breached their duty of care and had allowed C to breath in asbestos dust. C developed cancer, but we don’t know much about this cancer. We also don’t know under which employer the inhalation had caused the cancer to develop. The balance of probabilities approach would have failed the claim – but the HL said this was unfair for policy reasons. Allowed the claimant to sue both employers. There are two more justifications:

1. Fairness. Unfair to give a remedy to someone who breathed asbestos but only worked for one employer but not to someone who did the same but ended up working for multiple.

2. Sanction argument. The standard approach would mean the employers’ duties of care would be meaningless. As long as they could prove another employer had also been negligent, they would be immune.

Two issues remained:

• How much is each employer liable?

• What if C worked for 1 employer and...