It seemed the test may be unsympathetic to the claimant as a large chunk of burdens is positioned on the claimant, particularly, it is a Herculean chore to prove everything more than 51% for causation. Surprisingly, another novel medical negligence case happened in Chester v Afshar appears to be in favour of it notwithstanding its problems. In that situation, Miss Chester, the claimant, has suffered lower back pain for six years from 1988. The doctor, Mr. Afshar, in advising the patient, he has failed to caution the claimant of a 1 or 2% unavoidable risk in undergoing a caudal equine syndrome in surgery on her spinal column.
The respectful lordship, laid down his ratio with a majority view reached on a ground that, even though dissented, nonetheless. It is submitted where a modest departure should be granted. It is of their ratio that, the duty of the disclosure of risk is irreducible and not to be disregard with. The purpose of the law is sided on the patient hence they have the right to choose based on the advice given.
Understandably, life never gets so painless to have all time successfully sought for one cause in the balance of probabilities. The law also should not be placed in a situation where it covers the only certain situation. Over these decades, the ‘But For’ test has been criticised to be unfair and illogic to common sense simply it might neglect other possible defendants. It is purely a mirror of showing the ugliness the But For Test have been in the case of personal injury. It can be contended to be unfair to a single claimant for bearing all its consequences. In another word, this test is nothing but a mechanism of the common law violating the Art.6. Right to a fair trial. It is doubtless that it is a tremendously harsh test and difficult to prove to have a single test for all circumstances.
However, the questions are, on the other hand, to be deeply considered on whether ‘But For’ Test still ideal to be remained using by the institute of justice in this modern platform as caught in Chester v Afshar. In order to lubricate on the consideration, the view might become apparent to zoom in the modified test of causation
Other tests used in establishing causation
Flip another side of the coin, it is worth pinpointing on another test, which then established, a landmark case that ought not to be left would be the modified test as in McGhee v National Coal Board Ltd with the spirit to rectify the problems in ‘But For’ Test. In that situation, the standard of proving has become lower from proving ‘but for’ to material increase of the risk. The fact appears to be, where there was an employee, the claimant, with the job description to clean out brick kilns. The atmosphere and environment of the working location were hot and dusty. However, the claimant has provided no adequate washing facilities by the defendant, the National Coal Board. The claimant was found to be infected by dermatitis subsequently after some days. It is evidenced whereby the fact that, the claimant cycling home with brick dust adhering to his skin had gradually materially increased to the risk than he might suffer from dermatitis. The House of Lord in this case, has set in favour of the claimant by held that, the defendant was not liable for injury that is resulted from the exposure to dust in the proceed of work, but it had merely materially increased the risk. There has been a suspicion view where, the reason of the court to lower the standard is plainly for a question of policy. In regards with that, Lord Wilberforce has bluntly expressed in the judgment that:
“If one asks which of the parties, the workman or the employers, should suffer from this inherent evidential difficulty, the answer as a matter of policy or justice should be that it is the creator of the risk who, ex hypothesi, must be taken to have foreseen the possibility of damage, who should bear its consequences.”
In contrary to the aforementioned standing decision, in Wilsher v Essex Area Health Authority which is also decided by the House of Lord, has taken a different view. It is identified that, the claimant was born prematurely hence needed more oxygen to survive. Unfortunately, the junior doctor happened to be negligent and inserted a catherer into a vein rather than an artery. As a consequence, the baby (claimant) had received excessive oxygen, which eventually led to damage to the retina and consequential blindness. Apparently, the baby has suffered a great material physical injury. In the Court of Appeal of McGhee case, where Lord Browne Wilkinson being the minority view has delivered his dissenting view was later found preferred by Lord Bridge of Harwich in this case that:
“I do not consider that the present case falls within their [McGhee’s majority decision] reasoning. A failure to take preventive measures against one out of five possible causes is o evidence as to which of those five caused the injury.”
The mentioned quotation is then used as a ratio in deciding Wisher’s situation. As a result, causation was not established since none of the potential causes were more likely to have fulfilled the proof on the balance of probabilities. The insightful law lords who sat in that case have reached in common to distinguish where the line has been drawn as below :
“… But I find this cases quoted an analogy which suggests the conclusion that, in the absence of proof that the culpable condition had, in the result, no effect, the employers should be liable for an injury…”
The same applied in Gregg v Scott which has refused to use Material Increasing of risk test in which the usual causation test must stand and the claimant cannot recover the damages.
Precisely, one will not ignore an elephant in the living which has signified how important the latter came upon in the development of causation. Which, eventually also attract many attentions from academicians and legal actors as rebuttals have abundantly made, namely, the Fairchild v Glenhaven Funeral Services Ltd. This may be said as another prevailing view for now, which paves the way of thousand of similar cases, which happened also to be a medical negligence case.
The fact simply, where Mr Fairchild, have to cut asbestos sheets for roofing on the factory carried out his work with different employers has inhaled dusts that causing him mesothelioma. In the recent House of Lord decision with the absence of strong medical evidence in which even a single fibre could be the solitary cause, nonetheless, it appears to be difficult in determining which factory should be blamed on that ‘single’ fibre. It was held that, one increased the risk and another contributed subsequently the court has found in favour of Mr. Fairchild and all defendants are to be liable. The judgment is criticised to be unfair as there is insufficient of proof, which will be discussed on the next chapter in consideration of ‘fairness’.
The revolutionary case, took place in 2006, which is Barker v Corus is demonstrated to be a rectifying tool of the unsolved issue in Fairchild. The material fact is identical, that mesothelioma has been suffered and it eventually leads to death of the claimant – Mr. Barker. The claimant had been exposed to asbestos during three different periods and one of it was during his self-employment period. The trial judge in this case has relaxed and criticised Fairchild’s case to grant damages with apportionment rate since Mr. Barker will be partly liable during his self-employed duration.
Chapter 3 ~ Have Fairchild been fair in deciding in concerning with fairness? (The Criticisms)
It is of imperative to invoke Mc Lachlin J in that judgement that, Tort law is about compensating those who are wrongfully injured. This judgement is no doubt but a policy triggered the decision. However, it is always a question on whether should it be made per incuriam as this decision has not been complying with the standard of proof under civil law. As per Lord Hoffman is his dissenting judgement:
“The law should accept that position
and
attribute liability according to probabilities.”
The Law seemed to be uncertain in dealing with this matter. However, it is still rather widely accepted as, or perhaps, must have taken Sir Thomas Holland view that in dealing with causation, the matter of sense is overriding the matter of science.
In addition, in the concern of whether justice has been delivered, Lord Rodger is of the stand where the claimant should not be forced by the law to prove the ‘impossible’, if the law ever had, the ‘duty of care’ and ‘breach’ will be a worthless one as it takes no weigh. Moreover, Lord Bingham also delivered his view where it is decided on the balance of fairness. The law stands on the claimant side as the defendant has already breached his duty. Again, notably, it has been emphasised in that case. It is an exceptional situation and should be used sparingly if any case appears to be an identical one.
Nonetheless, Barker has criticised Fairchild to be an illogical one since it allowed the defendant who is wealthier to be targeted and without any proving of ‘strong’ causation. The latter criticism has already been overcome with the suggestion of indemnity payment. Of course, with the enactment of Compensation Act 2006 also made Fairchild decision more logical and reasonable. With the effect of Compensation Act 2006, Section 3 of this Act exclusively deals with Mesothelioma case, and it has laid down the principle of apportionment. It has also been further criticised on the grounds it leapt the evidential gap which is the reason why it is labelled as illogical in the vision of justice. It breaks the wall, as per Baroness Hale of Richmond, where he frankly expressed that Fairchild has laid down a law where persons are made to be liable even they may be an innocent party.
From the surface, Barker v Corus has shown the effort of the judges is establishing a fairer precedent as it also put a fence on Fairchild where it deals only with nothing beyond mesothelioma. Having all loopholes revealed, The novel case, Sienkiewicz v Grief(UK) Ltd has also mentioned Fairchild principle is to be strictly confined, and it as well suggested it to be govern under new tort called “ Tort of increasing risk in personal injury”.
Chapter 4: Conclusion
In the gist, it is opined that, the whole purpose of the law of tort is not anything least but also to endeavor on striking the balance of both parties when dealing with personal injury to ensure justice. As per Lord Devlin, whereby he states that, a duty of the English judge is to administer justice according to law. Hence, It is a worth thinking about whether Fairchild is at all serve lesser justice on the defendant but more prone to the claimant. It is simply on the grounds that, the burden to prove one has caused injury on the balance of probabilities, which means, chances of causing such as injury is exceeding 51%.
On that basis, it is gainsaid that, the test used by Fairchild and Barker didn’t obey such guidelines and hence may not be an adequate judgment. Doubtless, one test which backed the principle is ‘But For Test’ used in Barnett's case. It is suggested that, perhaps the principle of causation will be less burdened to make ‘Fairchild’ and ‘Barker’ principle into a new category of law.
Stringently speaking, the fact of the said case does not even fit in the law of negligence as there is a failure of proof on the balance of probabilities. As per academician T.Hill:
”…Proof of causation should not be accepted on anything less than the balance of probabilities, as in common with all civil actions…”
Notwithstanding that Compensation Act 2006 may have helped in a way to compensating the parties still it is far from the aim to ensure justice. So, commentator is of the view to establish a new tort after the novel case of Sienkiewicz v Grief (UK) Ltd [2009] as The ‘Tort of Increase Risk in Personal Injury’ with the threshold that, only similar fact like Fairchild with obstacles to prove under medical evidence and multiple possible defendants. The establishment of Fairchild principle perhaps purely on a pragmatic purpose that time, and maybe it is the time for some reform to make it sensible and justice sounded.
So far, It appears that Lord Bingham is quite true as to in general scenario when dealing with personal injury cases, ‘But For’ Test is the finest test to be invoked simply because it put more weight on the standard of proof in the balance of probabilities. It may, however, sound sheepish as after all the assessment on which test dress the best in ‘causation’, the result don’t seem to answer nor to give us a clearer impression on how it is better worked.
Nonetheless, it is of the opinion that, law should reform the lawin accordance from time to time as the social needs differ since time immemorial until now. Hence, perhaps the idea of having a new tort is of a fruitful one. Even if it does not, maybe modifying causation is not the only route but to have a better test in ‘remoteness’.
(3019 words)
Bibliography
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W V H Rogers, Winfield & Jolowicz, ‘Tort’, 17th Edition, published in 2006
- Emily Finch and Stefan Fafinski, ‘Tort Law’, published in 2007
- Hepple, Howarth & Matthews, ‘ Tort: Cases & Materials’ , published in 2001
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Chris Turner, Sue Hodge, ‘Unlocking Torts’, 3rd Edition, published in 2010
- Kumaralingam Amirthalingam, ‘Causation, risk and damage’, Law Quarter Review 2010
- Janet O’Sullivan, ‘ Mesothelioma and risk aired in the Court of Appeal’, Cambridge Law Journal 2010
- Marc Stauch, ‘Material Contribution as a response to causal uncertainty: time to rethink’, Cambridge Law Journal 2009
- Adam Kramer, ‘ Smoothing The Rough Justice of the Fairchild Principle’, Law Quarterly Review 2006
- Toby Robinson,’ Barker v Corus – The UK Asbestos Story Continues’ , Mealey’s Litigation Report 2006
In Donoghue v Steven [1932] AC 562 , if it weren’t it decided by Lord Atkin on that time,, the development of the tort of negligence would not have evolved as what we have seen today as the claimant may have succeed in claiming under contractual action via Right of Third Parties Act 1999.
Henderson v Jenkins [1970] AC 282
As per Lord Wilberforce in Lochgelly Iron Coal v M’Mulan[1934] AC 1 in which, an action of negligence will only be successful when it is proved that a duty of care owed that is breached and it caused damage that is not too remote.
Fairchild v Glenhaven Funeral Services Ltd [2002] UKCL 22
(1910) 2 KB 124 CA, this case laid down on factual causation of ‘But For’ test in criminal law.
‘Damno since injuria’ - every loss should be compensated.
Also known as Factual causation, W V H Rogers, Winfield & Jolowicz, Tort ( 17edn) 2006, p269
In Latin, it is called, Causa sine quo non
Malec v J.C. Hutton Pty Ltd (1990) 92 A.L.R. 545 at 549
Nield J:” My conclusion are: that the plaintiff has failed to established, on the balance of probabilities, that the deceased’s death resulted from the negligence of the defendants, my view being that, had all care been taken, the deceased might still have died. My further conclusions, however, are that Dr. Banerjee was negligent in failing to see and examine the deceased and that had he done so his duty would have been to admit the deceased to the ward and to have him treated or caused him to be treated.”
As per Professor Gary Slapper in ‘The Law Explored: The Law of Causation’ published in ‘Times’:”…Common sense is an important guide in applying the principle of causation…”
The Court In United Kingdom
[2004] UKCL 41; [2005] 1 AC 345
Wainwright v Home Office in which it was held that, even a slightest injury will amount to a recognized material physical injury.
“… Squarely within the risk which they created that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequences of their default…”
As per Matthew Arnold, disease litigation is the home of lost causes.
Sir Thomas Holland:”…The common law is ‘chaos with a full index’, the rule of causation are many and varies. But checking whether a defendant’s conduct is a legal cause of some injury or loss is a matter of sense more than science…”
As per Lord Macmillan , “… the categories of negligence are never closed…” under Donoghue v Stevenson
‘A lost chance for compensation in the tort of negligence by the House of Lord’ (1991) 54 MLR 511
Kumaralingam Amirthalingam, Law Quarterly Review 2010, ‘Causation, risk and damage.’
‘Remoteness’ is one of the important test in order to find one liable in negligence with Reasonable Forsight as a threshold under the Wagon Mound.