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TORT: Fairchild v Glenhaven Funeral Services

In the generality of personal injury actions, it is of course true that the claimant is required to discharge
the burden of showing that the breach of which he complains caused the damage for which he claims
and to do so by showing that but for breach he would not have suffered the damage.

Per Lord Bingham of Cornhill; Fairchild v Glenhaven Funeral Services Ltd. Discuss the truth of the
above statement in light of authorities before and after the decision of Fairchild.

Chapter 1: Introduction

Chronologically, having traced back on the development before 1932 where cases were decided on
ad hoc basis, it was indeed an uphill task for the triers in the court even it appears to be a similar
fact.[1] It is certainly a credit brought by the profound judge, Lord Atkin has planted a seed of the
negligence in tort which marked an important ink in tort law nonetheless still lead to criticism even it
eased the latter judges.[2] Similarly to one of the controversial and skeptical element in
proving[3] negligence and that is causation, the main issue to be discussed in this question on which
test to be used that is best dressed in covering every situation, hence obiter by Lord Bingham.[4]

It is notably that, regarding on the issue stated by Lord Bingham in Fairchild[5] is doubtless to say but
a black hole in the proof of causation as it still remains mysterious and unsolved. Without a second
of thought, it has been said that But for Test is the unsurpassed test since it has established which
borrowed from R v White[6] in criminal law. It is of course rather bizarre to use criminal law principle
applying in civil trial as it is utterly contradict to the aim of tort via the maxim of damno sine
injuria[7] since it would be harder to prove every single injury beyond reasonable doubt. Hence,
unquestionably, a lower standard will be granted in civil case, that is, on the balance of probabilities.
So do it leads to how the causation element has been vague especially with the modified test in
Fairchild.

Therefore, His Lordship Statement has raised a momentous point where in general situation, But
For[8] Test may be used if it appears to be apparent that it is more than probable that a sole cause
is present. Complication however arises when it appears to the fact that, it is thorny to identify the sole
cause as what took place in Fairchild case. It is submitted that, an imperative act has also been brought
by Compensation Act 2006 [9]which may alter the knotty situation. However, whether it or other case
laws have been effectively solving the doubts, uncertainty, and long-awaited questions are to be
discussed below. The climax is soon to be exposed.

Chapter 2: Is Lord Bingham Cornhill at all true especially in personal injury actions?
At the first glance, it is nonetheless, to some extent is true that, the more prevailing test would be But
For Test[10] as it is said as the rudimentary test in proving causation. It is also known as causation
in fact which is the traditionally applied over these centuries. This orthodoxy test simply applies on the
balance of probabilities whereby the likelihood is more than 51% in causing the harm[11].

It is vital not to disregard Lord Dennings judgment Cork v Kirby Maclean Ltd, which also left a binding
precedent for similar case.[12] Without any thorns, this case is quite straight forward where a man who
is an epileptic[13] , was being set to paint the roof of a factory. Expectedly, this necessitated him
exercise his work from a platform which is 23 feet above the floor. Unfortunately, Incident happened
inevitably that he fell from that platform and was killed result from that fall. It is also noted that, there
were no guards- rail or toe boards when the incident took place. In delivering the judgment, Lord
Denning has placed his ratio as:

If the damage would not have happened but for [emphasis added] a particular fault, then that fault
is the cause of the damage, if it would have happened just the same, fault or no fault, the fault is not
the cause of the damage

From the fact, it is overtly that, has affirmed Lord Binghams statement in which a personal injury claim
in negligence can thereby be discharged by the claimant as But For Test has invoked in the balance
of probabilities. Of course, it should be pointed, in general personal injury cases.

Apparently, the said test had also been applied by Barnett v Chelsea Kensington Hospita[14]l where
it states the But For Test is to be proved more than 51% of the consequence caused by the breach.
The scene of that case took place at the Hospital in which the claimants husband who is a night
watchman called in the early morning to Dr. Banerjees hospital. He was complaining of vomiting after
drinking tea. Nonetheless he has not been examined by any doctors but he was advised to seek for
his own doctor. Later that day he was found died of arsenical poisoning. It appears there is medical
evidence that the man would not have recovered even if the doctor had treated him. It was held that,
the hospital is found not liable since the But For Test failed since the sole cause of the death is not
caused by the failure of treatment.[15]

It seemed the test maybe unsympathetic to the claimant as a large chunk of burdens is positioned on
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 case, Miss Chester, the claimant, has suffered lower
back pain for 6 years from 1988. The doctor, Mr Afshar, in advising her 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[16], laid down his ratio with majority view reached on a grounds 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 situation where it covers 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.[17] 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 common law violating the Art.6 Right to a fair trial[18]. It is doubtless that it is a tremendously harsh
test and difficult to prove to have 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[19] in this modern platform as caught in Chester
v Afshar[20]. 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 to pinpoint on another test[21] 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[22] with the spirit to rectify the problems in But For Test. In that case, 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 was 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.[23]

In contrary to aforementioned standing decision, in Wilsher v Essex Area Health Authority which is
also decided by the House of Lord, has took 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 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.[24] In the Court of Appeal
of McGhee case, where Lord Browne Wilkinson being the minority view has deliver his dissention 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 [McGhees 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 Wishers situation. As a result, causation
was not established since none of the potential causes was more likely to have fulfilled the proof on
the balance of probabilities. The insightful law lords who sat in that case has reached in common to
distinguished 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[25]

The same applied in Gregg v Scott[26] 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[27]. This maybe 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.[28]

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[29] is demonstrated to be a
rectifying tool of the unsolved issue in Fairchild. The material fact is identical which is mesothelioma
suffered and it eventually lead 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 Fairchilds 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 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, most have taken Sir Thomas Holland view that in dealing with causation, the matter of
sense is overriding the matter of science.[30]

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 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 identical.

Nonetheless, Barker has criticised Fairchild to be an illogical ones 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.[31]

From the surface, Barker v Corus has showed the effort of the judges is establishing a fairer precedent
as it also put a fence on Fairchild where it deals only with not anything beyond mesothelioma. Having
all loopholes revealed, The novel case, Sienkiewicz v Grief(UK) Ltd[32] has also mentioned Fairchild
principle is to be strictly confined and it also 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 on 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 injury is
exceeding 51% .

On that basis, it is gainsaid that, the test used by Fairchild and Barker didnt 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 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.[33]

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[34]

Notwithstanding that Compensation Act 2006 may have helped in way to compensating the parties
still it is far from the aim to ensure justice. So, commentator[35] 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 dont seem to answer nor to give us
a clearer impression on how it is better work.

Nonetheless, it is of the opinion that, law should transform from time to time as the social needs differ
since time immemorial till 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[36].