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Harmful Conduct as the Touchstone of Causation: An Analytical Comparison of Barker v Corus and Julian

Document Cited authorities 6 Cited in Related
Vincent
DOI10.3366/elr.2011.0020
Date01 May 2011
Published date01 May 2011
Pages197-217
INTRODUCTION

In Fairchild v Glenhaven Funeral Services Ltd1

[2002] UKHL 22, [2003] 1 AC 32.

the House of Lords was called on to decide on the issue of alternative causation. Roman law was to play a role: Counsel relied on, and Lord Rodger cited in his opinion, two texts from the Digest on alternative causation.2

Iul D 9.2.51.1 and Ulp D 9.2.11.2, quoted in Fairchild at paras 158–159 per Lord Rodger. For an extensive analysis of the role of Roman law in Fairchild and other recent decisions of the House of Lords see J Lee, “Confusio: reference to Roman law in the House of Lords and the development of English private law” (2009) 5 Roman Legal Tradition 24.

 In the first the Republican jurists (veteres) are quoted by Julian, a jurist from the second century AD; in the second Ulpian, who flourished at the beginning of the third century, refers to this text by Julian. Fairchild underwent a serious re-interpretation when their Lordships were invited to revisit the issue of alternative causation in Barker v Corus (UK) plc.3

[2006] UKHL 20, [2006] 2 AC 572. It no longer applies to mesothelioma, its original scope, due to the Compensation Act 2006 s 3.

 Roman jurists no longer appear in this decision. Instead the majority – against Lord Rodger's fervent dissent – adopted the loss of chance doctrine, which is an altogether modern invention

It shall nevertheless be argued that the kind of liability envisaged in Barker is actually quite close to Julian's text. By shifting the gist of the action4

This expression has gained prominence from J Stapleton, “The gist of negligence, part 1: minimal actionable damage” (1988) 104 LQR 213 and J Stapleton, “The gist of negligence, part 2: The relationship between ‘damage’ and causation” (1988) 104 LQR 389.

to the increase of risk, the loss of chance doctrine focuses on the harmful conduct rather than the resulting damage. Similarly Julian's priority is the definition of occidere (killing) as found in the text of the lex Aquilia, a term which does not denote a result, i.e. death, but certain conduct, i.e. the act of killing. After sketching the development of the Fairchild exception, the argument will be advanced that Julian has a coherent view of killing, which emphasises the act of killing. This will enable a striking similarity in structure to be drawn between the Fairchild exception and Julian. Ironically it was its re-interpretation in Barker which brought the exception closer to its Roman root, rather than Lord Rodger's original quotation of the veteres ORIGIN AND MEANING OF THE <italic>FAIRCHILD</italic> EXCEPTION The original decision in <italic>Fairchild v Glenhaven Funeral Services</italic>

In this case the claimants had been exposed to asbestos dust while working for several employers, including the defendants, and had subsequently developed mesothelioma. The precise mechanism of how one contracts this disease is unknown. The inhalation of a single asbestos fibre may suffice to initiate the development of mesothelioma. Once contracted, the disease does not become worse by further exposure. What is certain, however, is that the longer a person is exposed to asbestos, the higher the risk that he will actually develop mesothelioma.

The usual test for causation is the “but for” test.5

For a discussion of alternatives to the “but for” test see H L A Hart and T Honoré, Causation in the Law, 2nd edn (1985) 114–129; R W Wright, “Causation in tort law” (1985) 73 Cal L Rev 1735; T Honoré, “Necessary and sufficient conditions in tort law”, in Responsibility and Fault (1999) 94.

The defendant's negligence is deemed to be the cause of the claimant's damage if the damage had not happened but for the defendant's negligence.6

Cork v Kirby Maclean [1952] All ER 402 at 407 per Denning LJ; cf also Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428. For English law see M A Jones, “Causation in tort: general principles” in Clerk and Lindsell on Torts, 19th edn by A M Dugdale et al (2006) para 2.7; Winfield and Jolowicz on Tort, 17th edn by W V H Rodgers (2006) para 6.6; Street on Torts, 12th edn by J Murphy (2007) 137. For Scottish law, see B Pillans, “Liability at common law”, in J Thomson (ed), Delict (2007) para 7.06; J Thomson, Delictual Liability, 4th edn (2009) para 6.1.

 Had this test been rigorously applied to the facts in Fairchild, the claimants could not have recovered. As a single asbestos fibre suffices to cause mesothelioma, it was impossible for them to prove on the balance of probabilities which of the defendants was responsible for their condition,7

Cf Fairchild at para 2 per Lord Bingham and at para 124 per Lord Rodger.

 although it was clear that the exposure to asbestos by one of them was the actual cause of the claimants developing mesothelioma. The House of Lords felt that this outcome was unjust, because the defendants had breached their duty to protect their employees against exposure to harmful substances. In these circumstances, their Lordships held that the employees' claims should not fail because proof of causation was scientifically impossible. If asbestos claims always failed for lack of proof of causation, employees would be unable to vindicate their right vis-à-vis their employers.8

Para 33 per Lord Bingham, para 61 per Lord Hoffmann, para 114 per Lord Hutton and para 155 per Lord Rodger.

In all speeches but Lord Nicholls' we can find remarks on the role which the increase of risk of contracting asbestos played,9

Paras 21 and 32 per Lord Bingham, para 108 per Lord Hutton and para 170 per Lord Rodger.

remarks which were to become highly influential in Barker v Corus. In particular Lord Hoffmann attached great weight to this point in his opinion10

Paras 61, 63 and 65.

 and identified the increase of risk with the breach of duty.11

Para 63.

 Furthermore his main policy argument is intimately connected with this issue. For Lord Hoffmann a “duty specifically intended to protect employees against being unnecessarily exposed to the risk of … a particular disease” and “intended to create a civil right to compensation” would be emptied of its content,12

Paras 61–62.

 were an employee denied compensation because he was unable to prove causation. In this situation it is preferable to hold an employer who was responsible for the increase of risk and thereby breached his duty of care liable for the harm suffered by the employee, although it is not entirely certain that the harm was caused by this particular employer's wrongful exposure of his employee to asbestos.13

Para 63.

 The re-interpretation of the <italic>Fairchild</italic> exception in <italic>Barker v Corus</italic>

The issue of mesothelioma caused by asbestos was again brought before the House of Lords in Barker v Corus. The first claimant's husband had died of mesothelioma, after having been exposed to asbestos at work three times. However, one exposure took place while he was self-employed and therefore was not wrongful. The House was invited to decide whether this situation still fell within the scope of the Fairchild exception. The exposures of the two other claimants' husbands were entirely wrongful, since they had occurred while they worked as employees; insofar it was evident that the rule of Fairchild was applicable. Yet their Lordships had to rule on the apportionment of damages, because some of the employers had in the meantime become insolvent.

Lord Hoffmann accommodated these two issues by re-interpreting Fairchild. For him the objective of the exception was “to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage”.14

Barker at para 17.

As most of their Lordships in Fairchild had referred to this increase of risk as an ingredient – even though not necessarily a requirement – of the exception, Lord Hoffmann could easily cite these references as authority in favour of his argument.15

Which Lord Hoffmann cautiously did: paras 31–34.

 Effectively he shifted the gist of the action away from the actual harm, i.e. mesothelioma, to the increase of the risk of developing this condition. The actionable damage no longer is the disease which eventuated, but the risk of contracting it. Seen from this perspective, the causal relationships are unproblematic: The wrongful conduct, i.e. exposing an employee to asbestos, is clearly the cause of what is now the actionable damage, i.e. the increased risk of developing mesothelioma. On this interpretation, Fairchild did not change the law of causation.16

Cf Stapleton (n 4) at 392 and 403–405; M Hogg, “Re-establishing orthodoxy in the realm of causation” (2007) 11 EdinLR 8 at 16–17; S H Bailey, “Causation in negligence: what is a material contribution?” (2010) 30 LS 167 at 179. However, L Khoury, “Causation and risk in the highest courts of Canada, England and France” (2008) 124 LQR 103 at 112 contends that Barker established “a way to impose liability without causation”.

 In fact the “but for” test is perfectly applicable: but for the defendant's breach of duty, the increase of risk of contracting the disease would not have occurred

By reformulating the actionable damage as increase of risk, the majority of the House of Lords for the first time embraced the loss of chance doctrine in the law of personal injury.17

A Burrows, “Uncertainty about uncertainty: damages for loss of a chance” (2008) 1 JPIL 31 at 38.

Before, the position firmly held by English law had been that the loss of a chance is actionable only in cases of purely economic loss or as consequential loss in cases of personal injury.18

Ibid at 34–38; A Burrows, “Judicial remedies” in A Burrows (ed), English Private Law, 2nd edn (2007) paras 21.75–21.77.

 Just shortly before the decision in Barker this had been confirmed in Gregg v Scott.19

[2005] UKHL 2, [2005] 2 AC 176.

 However, if precisely examined, the Fairchild exception is a hybrid of the orthodox and the loss of chance approach. Although the actionable damage is the increase of the risk of developing the disease,...

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