Causation in English Tort Law: Still Wrong after All These Years

Article excerpt

To the question--when may a claimant recover substantial damages from a defendant despite being unable to prove that the defendant's wrongful conduct caused her damage?--English tort law gives an incoherent and unjust answer. After briefly outlining that answer in the first part of this article, the second part describes some fundamental aspects of its incoherence and injustice. It traces each aspect to the House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd, (1) the modern source of English tort law's enclave of exceptional proof of causation rules. If the charges of incoherence and injustice against Fairchild are well-founded, it amply deserves a place in this special issue. The third part of the article sets out what the law on proof of causation in tort should have been had it not been distorted by Fairchild and its progeny.


We can state the law on proof of causation in English tort law as follows.

(1) The claimant generally bears the legal burden of proof to demonstrate on the balance of probability that the defendant's wrongful conduct was a cause of its damage in order to recover substantial damages. (2) This will involve demonstrating on the balance of probability that but for the defendant's wrongful conduct, the damage would not have occurred or that the defendant's wrongful conduct materially contributed to the damage. (3) The legal burden of proof dictates that if a finding cannot be made as to the existence or non-existence of some fact according to the governing standard of proof, the party bearing the burden fails to establish the relevant fact. Consequently, as a general rule, if it is impossible to demonstrate that the defendant was a cause of the damage on the balance of probability, the allocation of the burden of proof dictates that the claimant loses on the causal issue.

(2) The claimant is exceptionally relieved of proving that the defendant caused her damage on the balance of probability where the claimant suffers from mesothelioma (an asbestos-induced cancer) and it is impossible, due to the limitations of medical science, to determine on the balance of probability whether or not the defendant's wrongful conduct was a cause of the claimant's mesothelioma and all potential causes of the claimant's mesothelioma would operate to cause mesothelioma in a substantially similar way. In such circumstances, C may establish that D is liable in damages for C's mesothelioma simply by showing that D's wrongful conduct has materially increased the risk of C contracting mesothelioma.

This exception to the general rule was established by the decision in Fairchild. Fairchild involved three claims in each of which an employee had been wrongfully exposed to asbestos dust by successive employers and had either died or suffered from mesothelioma. Each employee had, on the balance of probability, contracted mesothelioma as a result of wrongful conduct, but was unable to prove on the balance of probability which employer's or employers' wrongful conduct had been causative because of limitations of scientific knowledge over the mechanism by which mesothelioma is caused. It was and continues to be unknown whether the disease is caused by a very small number of fibres or by the cumulative effect of many fibres. Consequently, each defendant could argue that the claimant's disease had been caused by a small number of fibres for which another defendant was responsible. The House of Lords allowed the estates of the deceased employees and the only living employee to succeed against each defendant on the basis that each had materially increased the employee's risk of mesothelioma. (4) In the later case of Barker v Corus (UK) Ltd., which involved the same facts as Fairchild except that the claimant's mesothelioma may have been caused by his contributorily negligent exposure to asbestos whilst self-employed, the House of Lords held that D's liability in damages in situations to which the decision in Fairchild applies is proportionate to the risk to which D wrongfully exposed C. …