England and Wales Court of Appeal (Civil Division) Decisions

(i) Mesothelioma 21

(ii) Asbestosis 27

4. The causation caselaw:

(i) Bonnington Castings, Nicholson and Gardiner 29

(ii) McGhee 37

(iii) Thompson, Bryce and Wilsher 52

(iv) Some Commonwealth cases 64

(v) Holtby 68

5. The judgments on causation in the courts below:

(i) Fairchild 72

(ii) Fox 75

(iii) Matthews 76

6. Causation: the arguments 78

7. Conclusion: Causation 102

8. Occupiers’ liability: the law

(i) Three different issues of law 109

(ii) Section 63(1) of the Factories Act 1961 111

(iii) The common law liability of an occupier before 1957 113

(iv) The Occupiers’ Liability Act 1957 and common law

liabilities since 1957 122

9. Occupiers’ Liability: The judgments.

(i) Babcock 134

(ii) Dyson 138

(iii) Fairchild 143

10. Occupiers’ Liability: Conclusions 149

11. Pendleton: Provisional Damages 156

12 The result of these appeals 167

 
Lord Justice Brooke : This is the judgment of the court.

1. Introduction

2. The Facts: (i) Arthur Fairchild

(ii) Thomas Fox

(iii) Edwin Matthews

(iv) John Hussey

(v) Lawrence Twohey

(vi) Robert Pendleton

3. Mesothelioma and Asbestosis: (i) Mesothelioma

(ii) Asbestosis

4. The causation caselaw: (i) Bonnington Castings, Nicholson and Gardiner

(ii) McGhee

“The medical evidence is to the effect that the fact that the man had to cycle home caked with grime and sweat added materially to the risk that this disease might develop. It does not and could not explain just why that is so. But experience shows that it is so. Plainly that must be because what happens while the man remains unwashed can have a causative effect, though just how the cause operates is uncertain. I cannot accept the view expressed in the Inner House that once the man left the brick kiln he left behind the causes which made him liable to develop dermatitis. That seems to me quite inconsistent with a proper interpretation of the medical evidence. Nor can I accept the distinction drawn by the Lord Ordinary between materially increasing the risk that the disease will occur and making a material contribution to its occurrence.

There may be some logical ground for such a distinction where our knowledge of all the material factors is complete. But it has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man’s mind works in the everyday affairs of life. From a broad and practical viewpoint I can see no substantial difference between saying that what the defender did materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury.”

(iii) Thompson, Bryce and Wilsher

“If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another, or increases an existing risk that injury will ensue; and if the two parties stood in such a relationship that the one party owes a duty not to conduct himself in that way; and if the party does conduct himself in that way; and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained.”

(iv) Some Commonwealth cases

i) A plaintiff must establish that his or her injuries are “caused or materially contributed to” by the defendant’s wrongful conduct;

ii) Proof of default by the defendant followed by injury of the plaintiff is insufficient to establish causation;

iii) If the defendant’s negligence cannot be causally linked to the particular risk, the plaintiff must bear the loss;

iv) A causal connection is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent;

v) The impossibility of excluding a factor as a cause of injury does not establish that factor as the cause of that injury;

vi) A plaintiff must show more than that it is possible that injury was caused by the defendant;

vii) One or more defendants may be liable if each has been shown to have negligently exposed a plaintiff to the risk of contracting the fatal disease. It will be sufficient to establish liability against each if their several acts caused or contributed materially to the onset of mesothelioma;

viii) A material increase in the risk of injury by a defendant is not legally equated with a material contribution to the injury by a defendant. However, in some circumstances if it were proved that the defendant did materially increase the risk of injuring the plaintiff then the court might infer causation, ie that the defendant’s negligence ‘materially contributed’ to the injury.

(v) Holtby

“The question should be whether at the end of the day and on consideration of all the evidence, the claimant has proved that the defendants are responsible for the whole or a quantifiable part of his disability. The question of quantification may be difficult and the court only has to do the best it can using its common sense, as Lord Salmon said in the passage cited. Cases of this sort, where the disease manifests itself many years after the exposure, present great problems, because much of the detail is inevitably lost. I can see that in Borel’s case, where the defendants were manufacturers as opposed to employers, the position may be particularly difficult. But in my view the court must do the best it can to achieve justice, not only to the claimant but to the defendant, and among defendants.”

5. The judgments on causation in the courts below: (i) Fairchild

(ii) Fox

(iii) Matthews

6. Causation: the arguments

“In consideration of causation of a particular mesothelioma medical science does not take a narrow mechanistic view, ie that the disease was caused only by the fibre or fibres which brought about the malignant transformation of the particular mesothelioma cell, any more than it takes the view that a lung cancer was caused only by the particular molecule or molecules of tar from one or more cigarettes which actually brought about the malignant transformation of a particular bronchial epithelial cell to a lung cancer cell. Rather, when it is not possible to have precise mechanistic knowledge of the mechanism of malignant transformation, medical science takes the view, on the basis of epidemiological evidence, that all factors which contributed to the risk that malignancy would occur contributed to causation of the malignancy. Hence, all asbestos fibres inhaled are considered to have contributed to causation of a mesothelioma in the same way that all cigarettes smoked are considered to have contributed to causation of a lung cancer.”

“One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.”

8. Occupiers’ liability: The law. (i) Three different issues of law

(ii) Section 63(1) of the Factories Act 1961

“In every factory in which, in connection with any process carried on, there is given off any dust or fume or other impurity of such a character and to such extent as to be likely to be injurious or offensive to the persons employed, or any substantial quantity of dust of any kind, all practicable measures shall be taken to protect the persons employed against inhalation of the dust or fume or other impurity and to prevent its accumulating in any workroom, …”

(iii) The common law liability of an occupier before 1957

“In this case … it does not matter whether the plaintiff was an invitee or a licensee. That distinction is only material in regard to the static condition of the premises. It is concerned with dangers which have been present for some time in the physical structure of the premises. It has no relevance in regard to current operations, that is, to things being done on the premises, to dangers which are brought about by the contemporaneous activities of the occupier or his servants or of anyone else.”

“… The basic principle for a case such as this is that occupation of premises is a ground of liability and is not a ground of exemption from liability. It is a ground of liability because it gives some control over and knowledge of the state of the premises, and it is natural and right that the occupier should have some degree of responsibility for the safety of persons entering his premises with his permission. In the language of the well-known passage in Lord Atkin’s speech in Donoghue v Stevenson there is a ‘proximity’ between the occupier and such persons, and they are his ‘neighbours’. Thus arises a duty of care, but the measure of it is not defined by or derivable from Donoghue v Stevenson. At common law the measure of that duty is a limited one …

But there is no exemption from any other duty of care which may arise from other elements in the situation creating an additional relationship between the two persons concerned. Theoretically in such a situation there are two duties of care existing concurrently, neither displacing the other. A plaintiff could successfully sue for breaches of either or both of the duties if the defendant had committed such breaches, although for practical purposes the plaintiff could be content with establishing the general duty and would not gain anything by adding the special and limited duty.”

“And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the questions whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact.”

(iv) The Occupiers’ Liability Act 1957 and common law liabilities since 1957

“1(1) The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.

(2) The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a person’s occupation or control of premises and of any invitation or permission he gives (or is to be treated as giving) to another to enter or use the premises, but they shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed; and accordingly for the purpose of the rules so enacted the persons who are to be treated as an occupier and as his visitors are the same (subject to subsection (4) of this section) as the persons who would at common law be treated as an occupier and as his invitees or licensees. …

2(1) An occupier of premises owes the same duty, the ‘common duty of care’, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to a visitor or visitors by agreement or otherwise.

(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

….

(4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) –

a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and

b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.”

“I am content to assume, for the purposes of the present appeal, that there is evidence capable of establishing that Mr Spence did have the ostensible authority of the council to allow the Welsh brothers (and, through them, Mr Ferguson) onto the land, Even so, in my judgment Mr Ferguson’s action against the council must fail because I cannot see how the council could be held liable to him, in particular under the Occupiers’ Liability Act 1957.

On the assumption that Mr Ferguson was the lawful visitor of the council on the land, the council owed to him the common duty of care, ie a duty ‘to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’: see section 2(2) of the Act. I have emphasised the words ‘in using the premises’ because it seems to me that the key to the problem in the present case lies in those words. I can see no basis, even on the evidence now available, for holding that Mr Ferguson’s injury arose from any breach by the council of that duty. There can, no doubt, be cases in which an independent contractor does work on premises which result in such premises becoming unsafe for a lawful visitor coming upon them, as when a brick falls from a building under repair onto the head of a postman delivering the mail. In such circumstances the occupier may be held liable to the postman, though in considering whether he is in breach of the common duty of care there would have to be considered, inter alia, the circumstances specified in section 2(4)(b) of the Act. But if I ask myself, in relation to the facts of the present case, whether it can be said that Mr Ferguson’s injury arose from a failure by the council to take reasonable care to see that persons in his position would be reasonably safe in using the premises for the relevant purposes, the answer must, I think, be no. There is no question as, I see it, of Mr Ferguson’s injury arising from any such failure; for it arose not from his use of the premises but from the manner in which he carried out his work on the premises. For this simple reason, I do not consider that the Occupiers’ Liability Act 1957 has anything to do with the present case.”

“It is possible to envisage circumstances in which an occupier of property engaging the services of an independent contractor to carry out work on his premises may, as a result of his state of knowledge and opportunities of supervision, render himself liable to an employee of the contractor who is injured as a result of the defective system of work adopted by the employer. But I incline to think that his liability in such case would be rather that of joint tortfeasor than of an occupier.”

Lord Keith, too, was tending in the same direction at p 1560B in the sentence which starts “It would be going a very long way to hold …”

9. Occupiers’ liability: the judgments. (i) Babcock

“In my judgment, the circumstances of this case do not take it outside the principle enunciated in Ferguson v Welsh. The defendants engaged contractors whom they had reasonable grounds for regarding as competent. Both the defendants and Lindleys were aware of the presence of asbestos on the boilers and pipes and, in my judgment, it was not reasonable to expect the defendants to supervise Lindleys’ activities in order to ensure that they discharged their duty to their own employees. It is right that Mr Broadbent regarded himself as having the power to instruct Lindleys’ employees as to the method of work they should adopt but, in my view, that cannot be equated with the assumption of a duty by the defendants so to instruct Lindleys or their employees.”

(iii) Fairchild

10. Occupiers’ Liability: Conclusions

11. Pendleton: Provisional Damages

“51(1) This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.”

The procedure is now governed by CPR Part 41, which provides by CPR 41.2(1)(b) that the court may make an order for an award of provisional damages if it is satisfied that one or other of these statutory provisions applies.

“(2) An order for an award of provisional damages –

(a) must specify the disease or type or deterioration in respect of which an application may be made at a future date;

(b) must specify the period within which such an application may be made; and

(c) may be made in respect of more than one disease or type of deterioration and may, in respect of each disease or type of deterioration, specify a different period within which a subsequent application may be made.”

12. The result of these appeals