January
2012
2012
By Mark Brookes, Partner
and Lauren Rickersey, Solicitor
UK and Australian application of the “but for” test
Introduction
To ensure the damage element of a negligence claim
is satisfied, a claimant must prove the loss was
caused by the act or omission of the defendant.
When determining factual causation one of the
common law tests that provides assistance is the
“but for” test.
The “but for” test determines whether the harm
suffered by a claimant was caused by the breach of
the defendant’s duty, on the basis the claimant would
not have suffered harm “but for” the defendant’s
breach.
However, flaws in the “but for” test have been
discussed in cases involving supervening events
1
which break the chain of causation.
Differences between Australia & the UK
It has been suggested the current Australian law of
causation should remain the same notwithstanding
developments in the United Kingdom over the last
ten years. The UK developments arose from
Fairchild v Glenhaven Funeral Services Ltd & Ors
2
3
(Fairchild), Barker v Corus (UK) Plc (Barker) and
4
Sienkiewicz v Greif (Sienkiewicz), which were not
followed in the Australian cases of Amaca Pty Ltd v
5
6
Ellis (Amaca) and Tabet v Gett (Tabet).
Fairchild — UK
In Fairchild, there were three cases whereby each
claimant worked for a number of different employers
and during the course of their duties, were exposed
to and inhaled asbestos dust and fibres which
caused them to suffer from a type of mesothelioma
which ultimately lead to their deaths.
As there were multiple employers who exposed the
claimants to asbestos, it was held the “but for” test
could not be applied to determine that the claimants
would not have suffered from mesothelioma but for
any one or more employers’ breaches of duty.
On appeal, the predominant issue was “whether, in
the special circumstances of such a case, principle,
authority or policy requires or justifies a modified
7
approach to proof of causation.”
The House of
Lords found that it was impossible to establish on
the balance of probabilities that the employers’
breach of duty caused the claimants to suffer from
mesothelioma. The House of Lords therefore
adopted the approach taken in McGhee v National
8
Coal Board and held that the employers
9
“individually materially increased the risk.”
Barker — UK
In Barker, there were also three cases whereby
each claimant was exposed to asbestos whilst
working for a number of employers, and each
claimant suffered and ultimately died from
asbestos-related mesothelioma. The House of
Lords found the Fairchild exception applied in this
case, however needed to consider that one of the
claimants, Mr Barker, exposed himself to asbestos
when working as a self-employed plasterer. Mr
Barker had two prior exposures to asbestos whilst
working for two different employers, with one of the
employers being insolvent and not having an
identified insurer.
The House of Lords found that the two employers
were jointly and severally liable for causing Mr
Barker’s mesothelioma, however Mr Barker was
found contributory negligent and the damages were
reduced by 20%.
The insolvent employer could not contribute its
proportion and it therefore needed to be
determined whether the solvent employer would
only be liable for its proportion of the damages.
The House of Lords held that “limited liability
proportionate to risk is the better course for the law
10
to take”
and that employers “are only liable in
proportion to their own contribution to the
11
claimant's overall exposure to the risk of harm.”
Therefore, the solvent employer was only liable to
pay its proportion of damages.
Sienkiewicz — UK
In Sienkiewicz, there were two cases whereby
each claimant had a small amount of exposure to
asbestos by only one employer. At first instance,
the trial judge found that the Fairchild exception did
not apply; however, the Court of Appeal disagreed
and first required it to be determined whether the
Fairchild exception applied in circumstances where
the claimants had a “single exposure” to asbestos
by one employer rather than multiple employers,
but with additional exposure to asbestos in the
general environment. The House of Lords found
“there is no room for the application of a different
12
test” and the Fairchild exception applies to cases
involving single and multiple exposure to asbestos.
1
8
2
9
March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506.
Fairchild v Glenhaven Funeral Services Ltd & Ors [2002]
UKHL 22.
3
Barker v Corus (UK) Plc [2006] UKHL 20.
4
Sienkiewicz v Greif [2011] UKSC 10.
5
Amaca Pty Ltd v Ellis [2010] HCA 5.
6
Tabet v Gett [2010] HCA 12.
7
Fairchild v Glenhaven Funeral Services Ltd & Ors [2002]
UKHL 22 per Lord Bingham of Cornhill at [2].
© Carter Newell 2012
McGhee v National Coal Board [1972] UKHL 7.
Fairchild v Glenhaven Funeral Services Ltd & Ors
[2002] UKHL 22 per Lord Rodger of Earlsferry at [168].
10
Baker v Corus (UK) Plc [2006] UKHL 20 per Lord
Walker of Gestingthorpe at [113].
11
Baker v Corus (UK) Plc [2006] UKHL 20 per
Baroness Hale of Richmond at [128].
12
Sienkiewicz v Greif [2011] UKSC 10 per Lord Dyson
at [220].
www.carternewell.com
Amaca — Australia
In Amaca, Mr Cotton passed away from lung cancer. Mr
Cotton had been exposed to asbestos fibres by two
different employers, however smoked a considerable
amount of tobacco every day for many years. The case
was appealed to the High Court of Australia to determine
causation.
Based on the evidence provided, the High Court found
that it was more probable that the claimant’s cancer was
caused by smoking than the exposure to asbestos, having
regard to the risk of each.
The High Court could not establish causation and held that
legal responsibility could not be attributed to an entity that
13
“may have been a cause” of the cancer. The High Court
therefore established that it must be proved on the
balance of probabilities that the exposure and inhalation of
asbestos fibres caused the lung cancer.
Tabet — Australia
In Tabet, Miss Tabet suffered from irreversible brain
damage and claimed such an injury was caused by her
doctor’s negligence and failure to exercise due care and
skill in managing her treatment. It was found the doctor
breached his duty by failing to detect the cancer which
caused a delay in Miss Tabet’s treatment. Miss Tabet’s
claim needed to be proven on the balance of probabilities.
In the first instance, Miss Tabet failed to establish that her
injury was caused or contributed by the doctor’s
negligence.
On appeal, Miss Tabet needed to determine “whether
Australian law does or should permit recovery of damages
where the breach of a duty of care results in the loss of a
14
chance of a better medical outcome.” The Court found
that Australian law does not permit such a recovery as
there needs to be actual damage rather than there being a
mere possibility or chance of damage. The Court noted
that the standard of proof in causation would need to be
lowered for “loss of chance” to be a liability issue in
personal injury cases and that it is the role of parliament to
develop the law in this area.
Summary
As outlined above, there are now significant differences
between the law of causation in Australia and the United
Kingdom, at least in so far as it relates to certain personal
injury claims.
____________________________
13
Amaca Pty Ltd v Ellis [2010] HCA 5 at [70].
14
Tabet v Gett [2010] HCA 12 per Crennan J at [100].
The predominant differences are:
If a case involves special circumstances, the law of
causation in the United Kingdom allows a claimant to
obtain damages from multiple employers on the
proviso that it can be proven that each employer
“individually materially increased the risk” of the
claimant suffering harm.
In the United Kingdom, if two employers are found to
be liable for causing harm to the claimant and one of
the employers becomes insolvent, the solvent
employer or its insurers will only be liable for paying
their proportion.
In the United Kingdom, the Fairchild exception applies
to cases involving a person who has had a single
exposure or multiple exposures to asbestos.
In Australia, a claimant must establish that the
exposure and inhalation of the asbestos caused the
loss on the balance of probabilities. Causation will be
established in Australia if the claimant can prove that
only one cause is responsible for the loss.
In Australia, cases need to be proven on the balance
of probabilities and Australian law does not recognise
that a “loss of chance” can be considered a ground for
a claim for personal injury. Such a development would
require the intervention of parliament.
When considering the application of the “but for” test in an
Australian professional liability case involving the duty of a
legal practitioner to his or her client, the High Court stated
that “in order to establish causation a plaintiff must show
at least that, but for the advocate's conduct, a different
15
result would have [been] obtained in the proceedings.
Authors
Mark Brookes
Partner
T (07) 3000 8301
E [email protected]
Lauren Rickersey
Solicitor
T (07) 3000 8483
E [email protected]
____________________________
15
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 per Toohey
J at [143].