Judgments - Fairchild (suing on her own behalf) etc. v. Glenhaven Funeral Services Ltd and others etc.

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    23. The problem of attributing legal responsibility where a victim has suffered a legal wrong but cannot show which of several possible candidates (all in breach of duty) is the culprit who has caused him harm is one that has vexed jurists in many parts of the world for many years. As my noble and learned friend Lord Rodger of Earlsferry shows (see paras 157-160 below) it engaged the attention of classical Roman jurists. It is indeed a universal problem calling for some consideration by the House, however superficially, of the response to it in other jurisdictions.

    24. Professor Christian von Bar (The Common European Law of Torts, 2000, vol 2, pp 441-443) has written:

    "The phenomenon of double causation is thus an insufficient argument against the but - for test. It is merely peripheral. Of greater importance are the many cases in which, although one cannot speak of a scientifically ascertainable or explicable 'cause' and 'effect', courts have awarded compensation on the basis of fault and probability. German law on medical negligence provides the example of the reduced burden of proof of causation in cases of grave treatment errors. Recent environmental legislation has reacted to the problem of scientifically uncertain causal relationships in a similar manner. The reversal of the burden of proof regarding causation is no more than a reduction of the probability required for attribution. A further development has arisen in the Netherlands regarding liability for medicines in the context of DES liability. The Hoge Raad's solution, on the basis of Art 6.99BW, of holding jointly liable to cancer sufferers the manufacturers of all those carcinogenic medicines available at the time when the victims' mothers had taken those substances is clearly unjustifiable under the conditio sine qua non rule. If the issue is seen to be whether the victim or the person posing the risk is better positioned to bear that risk, the solution is more comprehensible."

In similar vein, Professor Walter van Gerven (van Gerven, Lever and Larouche: Cases, Materials and Text on National, Supranational and International Tort Law, 2000, p 441), surveying the tort law of, in particular, Germany, France and Britain, wrote:

    "In many cases, it will be possible for the victim to show that he or she has suffered injury, that it has been caused by someone who must have been at fault, but the author of that fault will not be identifiable. The best that the victim will be able to achieve is to define a class of persons of which the actual tortfeasor must be a member. Strictly speaking, however, the basic conditio sine qua non test will not be met, since it cannot be said of any member of the class that the injury would not have happened 'but for' his or her conduct, given that in fact any other member could have caused the injury. Nonetheless, all the legal systems studied here have acknowledged that it would be patently unfair to deny recovery to the victim for that reason."

At p 461, after reference to McGhee's case ([1973] 1 WLR 1) and Wilsher's case ([1988] AC 1074) van Gerven added:

    "McGhee had put English law on the same path as German law, albeit with a different and arguably stronger rationale (negligent creation of risk instead of impossibility for the plaintiff to prove causation). Furthermore, it must be noted that some French legal writers are advocating that French law moves away from perte d'une chance towards a reversal of the burden of proof on the basis of the negligent creation of risk. It is unfortunate that the House of Lords retreated from McGhee at a time when laws were converging. In the end, the sole relief for the plaintiff under English law is that it suffices for the purposes of causation to show that the conduct of the defendant made a material contribution to the injury, even if it was not its sole cause."

He concluded (at p 465):

    "In certain cases, the plaintiff can show that he or she suffered injury, that it was caused by some person and that the other conditions of liability are otherwise fulfilled but for the fact that the actual tortfeasor cannot be identified among the members of a class of persons. In these cases, the strict application of the 'but for' test would result in the claim of the plaintiff being dismissed, but all systems under study here make an exception to the rules of causation to provide the plaintiff with compensation."

    25. In Germany cases of this kind have been held to be covered by the second sentence (to which emphasis has been added) of BGB §830.1 which provides:

    "If several persons have caused damage by an unlawful act committed in common each is responsible for the damage. The same rule applies if it cannot be discovered which of several participants has caused the damage by his act."

Of this provision Markesinis and Unberath (The German Law of Torts, 4th ed, 2002, p 900) states:

    "§830.1, second sentence, applies the same rule to a different situation where several persons participate in a course of conduct which, though not unlawful in itself, is potentially dangerous to others. The difference between this and the previous situation lies in the fact that whereas in the former case of joint tortfeasors the loss is caused by several persons acting in consort, in the latter case only one person has caused the loss but it is difficult if not impossible to say which one has done so. (The classic illustration is that of the huntsmen who discharge their guns simultaneously and the pellets from one unidentifiable gun hit an innocent passer-by.) In this case, as well, §830 BGB adopts the same rule and makes all the participants liable to the victim for the full extent of damage."

It is evident that this approach has been applied in Germany in a number of different situations: see Palandt, Bürgerliches Gesetzbuch, 61 ed 2002, para 830. Thus cases decided on this basis have included personal injury caused by several individuals throwing stones in a fight; personal injury of a pedestrian who passes a construction site operated by different companies; personal injury by a New Year's Eve rocket launched by a group of individuals who were all firing rockets; liability of several hunters for the personal injury of a passer-by; liability of a houseowner for the personal injury of a pedestrian who walks on a dangerous path and is hurt on the borderline between the houseowner's land and an unfinished street owned by the local authority; and personal injury of a patient after various interrelated operations conducted by different doctors. The extent to which this approach to causation may be subject to certain restrictive conditions appears to be a matter of some uncertainty; see van Gerven, op. cit, p 446.

    26. The BGB is not alone in expressly recognising the problem of the indeterminate defendant. Article 926 of the Greek Civil Code, entitled "Damage caused by several persons" provides:

    "If damage has occurred as a result of the joint action of several persons, or if several persons are concurrently responsible for the same damage, they are all jointly and severally implicated. The same applies if several persons have acted simultaneously or in succession and it is not possible to determine which person's act caused the damage."

The second sentence of this provision would appear to cover the contingency under consideration, although the contrary has been asserted: Unification of Tort Law: Causation, ed J Spier, 2000, at p 77. A somewhat similar provision is to be found in the Austrian Civil Code:

    "1302  In such a case, if the injury is inadvertent, and it is possible to determine the portions thereof, each person is responsible only for the injuries caused by his mistake. If, however, the injury was intentional, or if the portions of the individuals in the injury cannot be determined, all are liable for one and one for all; however, the individual who has paid damages is granted the right to claim reimbursement from the others."

A similar provision is also found in the Netherlands Civil Code (Article 6.99 BW: see paragraph 29 below).

    27. The problem of attribution has repeatedly arisen in the context of shooting incidents, described by Professor Markesinis as "The classic illustration" in the passage quoted in para 25 above. In Litzinger v Kintzler (Cass. civ. 2e, 5 June 1957, D 1957 Jur. 493), where a group of huntsmen fired a salvo to mark the end of a deer hunt and the plaintiff was shot, the French Cour de Cassation held the whole group liable since "the whole group created a risk through its negligent conduct, and the injury to the plaintiff constituted a realisation of that risk" (see van Gerven, op cit. at pp 442-444). It appears that this reasoning (depending on a broad view of acting in concert) has been reaffirmed in later cases (ibid). In Spain, a provision of the Hunting Act 1970 provides that "In the case of hunting with weapons, if the author of the personal injury is not known, all members of the hunting party shall be jointly and severally liable." This is not a problem which is confined to Europe. In Summers v Tice 199 P 2d 1 (1948) each of two defendants at or about the same time shot at a quail and in doing so fired towards the plaintiff who was struck by shot. The Supreme Court of California referred (at p 3) to earlier authority and said:

    "These cases speak of the action of defendants as being in concert as the ground of decision, yet it would seem they are straining that concept and the more reasonable basis appears in Oliver v Miles, supra. There two persons were hunting together. Both shot at some partridges and in so doing shot across the highway injuring plaintiff who was travelling on it. The court stated they were acting in concert and thus both were liable. The court then stated . .

    'We think that . . . each is liable for the resulting injury to the boy, although no one can say definitely who actually shot him. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence.' [Emphasis added]."

The conclusion of the court was expressed on p 4, para 5, and p 5, para 7 of the judgment:

    "When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers - both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can . . . We have seen that for the reasons of policy discussed herein, the case is based upon the legal proposition that, under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently."

The Summers alternative liability theory was incorporated in the Restatement Second of Torts, section 433B, subdivision (3) pages 441-447, which provides:

    "Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm."

The Supreme Court of Canada confronted this situation in Cook v Lewis [1951] SCR 830, in which Cartwright J, with whom a majority agreed, said at p 842:

    "I do not think it necessary to decide whether all that was said in Summers v Tice should be accepted as stating the law of British Columbia, but I am of opinion, for the reasons given in that case, that if under the circumstances of the case at bar the jury, having decided that the plaintiff was shot by either Cook or Akenhead, found themselves unable to decide which of the two shot him because in their opinion both shot negligently in his direction, both defendants should have been found liable."

    28. In a Norwegian case (see Nils Nygaard, Injury/Damage and Responsibility, 2000, pp 342-343) F was a passenger on a motor scooter and was injured in an accident caused either by a cable stretched across the street by a construction company or by the motor scooter falling onto him or as a result of collision with a truck, or by any combination of these factors. In giving judgment (RG 1969 p 285 at 293) the Norwegian court said:

    "As stated in the beforementioned conclusions made by experts, they could not conclude whether the situation that resulted in crushed bones in F's left hip region, was a result of falling on the cobble stones in the street or from the truck's front tyre, that ended up on top of F's left hip region. It is possible that the injuries were partially a result of the fall and being hit by the truck. We cannot say anything definite about this. The court finds that it cannot conclude whether it is the fall or being hit by the truck or a combination of both these factors that caused the injury. After a collective evaluation of the whole event the court finds that A (construction company), the scooter and the truck each have a part in F getting injured and each of them must naturally be seen as adequate cause of injury."

This decisions bears a strong resemblance to that reached by the English Court of Appeal in Fitzgerald v Lane [1987] QB 781, decided after the decision of the Court of Appeal in Wilsher [1987] QB 730 but before the decision of the House of Lords ([1988] AC 1074).

    29. Increasingly in recent years, the problem of attribution has arisen in more complicated factual situations. Sindell v Abbott Laboratories 26 Cal. 3d 588 (1980) was a class action for personal injuries said to have resulted from pre-natal exposure to the anti-miscarriage drug diethylstilbestrol (DES) which had been manufactured by one of a potentially large number of defendants. The plaintiff could not identify which particular defendant had manufactured the drug responsible for her injuries. However, her complaint alleged that the defendants were jointly and individually negligent in that they had manufactured, marketed and promoted DES as a safe drug to prevent miscarriage without adequate testing or warning of its dangerous side effects; that they had collaborated in their marketing methods, promotion and testing of the drug; that they had relied on each others' test results; that they had adhered to an industry-wide safety standard; and that they had produced the drug from a common and mutually agreed generic formula. The court distinguished Summers on the basis that in that case all the parties who were or could have been responsible for the harm to the plaintiff were joined as defendants, whereas in Sindell there were approximately 200 drug companies which had made DES, any of which might have manufactured the injury-producing drug. The court held that it would be unfair, in such circumstances, to require each defendant to exonerate itself. Further, it said that there might be a substantial likelihood that none of the five defendants joined in the action had made the DES which caused the injury, and that the offending producer, not named, would escape liability. The court surmounted this problem by adapting the Summers rule so as to apportion liability on the basis of the defendant's market share. See pp 593-595, 602-603, 604-605 and 612-613. A very similar case concerning the same drug arose in the Netherlands in B v Bayer Nederland BV (Hoge Raad, 9 October 1992, NJ 1994, 535) which turned on Article 6.99 BW. That provision is in these terms:

    "Where the damage may have resulted from two or more events for each of which a different person is liable, and where it has been determined that the damage has arisen from at least one of these events, the obligation to repair the damage rests upon each of these persons, unless he proves that the damage is not the result of the event for which he himself is liable".

In para 3.7.1 of its judgment the Hoge Raad held:

    "The facts of the present case fall under that provision, on the assumption that it can be proved that [i] each of the firms which put DES in circulation in the relevant period was at fault in so doing and could thus be held liable, [ii] the total injury of each victim could have been caused by any of these 'events' - i.e. putting DES in circulation - and [iii] the injury occurred because of at least one of these 'events' . . .

    "[Article 6.99BW] aims to remove the unfairness arising from the fact that the victim must bear his or her own damage because he or she cannot prove whose action caused his or her harm. The victims in the present case are faced with such an evidentiary difficulty . . .".

In para 3.7.5 of its judgment the court said:

    "It is sufficient for each DES daughter to establish . . . in relation to each of the pharmaceutical companies:

(i)

        that the pharmaceutical company in question put DES in circulation during the relevant period and can therefore be found liable because it committed a fault;

(ii)

        that another or several other producers - regardless of whether they are parties to the proceedings or not - also put DES in circulation during the relevant period and can therefore also be found liable because it (they) committed a fault; and

(iii)

        that she suffered injury that resulted from the use of DES, but that it is no longer possible to determine from which producer the DES originated."

    In principle the burden of proof on these issues rests on the DES daughter concerned."

See van Gerven, op cit, at pages 447-448.

    30. Cases decided in the High Court of Australia do not disclose a clear ratio on which the appellants were able to rely before the House, although they drew attention to dicta which were helpful to them. For example, in Chappel v Hart (1998) 195 CLR 232 at 244, para 27, McHugh J said, in a passage reminiscent of McGhee, although without referring to that case:

    "Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff. That being so, whether the claim is in contract or tort, the fact that the risk eventuated at a particular time or place by reason of the conduct of the defendant does not itself materially contribute to the plaintiff's injury unless the fact of that particular time or place increased the risk of the injury occurring."

In that case McHugh J dissented on the facts but in Naxakis v Western General Hospital (1999) 197 CLR 269 both Gaudron J (at p 279, para 31) and Callinan J (at p 312, para 127) quoted what he had said with approval. In Canada, Sopinka J, speaking for the Supreme Court in Snell v Farrell [1990] 2 SCR 311 said, at pp 326-327:

    "I have examined the alternatives arising out of the McGhee case. They were that the plaintiff simply prove that the defendant created a risk that the injury which occurred would occur. Or, what amounts to the same thing, that the defendant has the burden of disproving causation. If I were convinced that defendants who have a substantial connection to the injury were escaping liability because plaintiffs cannot prove causation under currently applied principles, I would not hesitate to adopt one of these alternatives. In my opinion, however, properly applied, the principles relating to causation are adequate to the task. Adoption of either of the proposed alternatives would have the effect of compensating plaintiffs where a substantial connection between the injury and the defendant's conduct is absent. Reversing the burden of proof may be justified where two defendants negligently fire in the direction of the plaintiff and then by their tortious conduct destroy the means of proof at his disposal. In such a case it is clear that the injury was not caused by neutral conduct. It is quite a different matter to compensate a plaintiff by reversing the burden of proof for an injury that may very well be due to factors unconnected to the defendant and not the fault of anyone."

Sopinka J suggested, at p 328, that dissatisfaction with the traditional approach to causation stemmed to a large extent from its too rigid application by the courts in many cases, and that causation need not be determined by scientific precision. Despite this judgment the Manitoba Court of Appeal, in Webster v Chapman (1997) 155 DLR (4th) 82 held, relying on McGhee, that no distinction should be made in that case between materially increasing the risk of damage and materially contributing to the damage.

    31. There is a small but important body of authority on the problem of attribution in mesothelioma cases where the plaintiff has been exposed to asbestos during employment by more than one employer. Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 was such a case. A majority of the Court of Appeal of New South Wales held against the plaintiff on the causation issue, relying on Wilsher [1988] AC 1074 among much other authority. Stein JA dissented, citing with approval the following passage from the judgment of King CJ in Birkholtz v R J Gilbertson Pty Ltd (1985) 38 SASR 121 at 130:

    ". . . the law's view of causation is less concerned with logical and philosophical considerations than with the need to produce a just result to the parties involved. Where a defendant is under a legal duty to take precautions to protect the plaintiff from the risk of contracting disease, and, by omitting those precautions he substantially increases the risk of the plaintiff contracting that disease, the law treats that increase in risk as a sufficient basis, in the absence of evidence showing how the infection occurred, for an inference that the omission of the precautions materially contributed to the contracting of the disease. Justice requires such an approach to the problem of causation and it is the approach which was taken by the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1."

The majority decision in Bendix was followed in Wallaby Grip (BAE) Pty Ltd v Macleay Area Health Service (1998) 17 NSWCCR 355. A different result was reached in E M Baldwin & Son Pty Ltd v Plane (1999) Aust Torts Reports 81-499, but on different medical evidence. A different view of the law was also expressed in Rutherford v Owens-Illinois Inc 67 Cal. Rptr. 2d 16 (1997). In a judgment with which the Chief Justice and all save one member of the Supreme Court of California concurred, Baxter J observed (at p 19):

    "Proof of causation in such cases will always present inherent practical difficulties, given the long latency period of asbestos-related disease, and the occupational settings that commonly exposed the worker to multiple forms and brands of asbestos products with varying degrees of toxicity. In general, however, no insuperable barriers prevent an asbestos-related cancer plaintiff from demonstrating that exposure to the defendant's asbestos products was, in reasonable medical probability, a substantial factor in causing or contributing to his risk of developing cancer. We conclude that plaintiffs are required to prove no more than this. In particular, they need not prove with medical exactitude that fibers from a particular defendant's asbestos-containing products were those, or among those, that actually began the cellular process of malignancy."

Baxter J reviewed earlier cases such as Summers 119 P 2d 1 (1948) and Sindell 26 Cal. 3d 588 (1980) and specifically addressed the factual possibility that a mesothelioma may be caused by inhalation of a single fibre, acknowledging (at pp 30-31) that the single fibre theory raised an apparently unanswerable question: "which particular fibre or fibres actually caused the cancer to begin forming[?]". He observed (at p 31) that plaintiffs could not be expected to prove the scientifically unknown details of carcinogenesis or trace the unknowable path of a given asbestos fibre. For reasons given very clearly but at some length Baxter J rejected a burden-shifting approach to cases of this kind. At p 36 the judgment concluded:

    "In the context of a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant's defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a 'legal cause' of his injury, ie, a substantial factor in bringing about the injury. In an asbestos-related cancer case, the plaintiff need not prove that fibers from the defendant's product were the ones, or among the ones, that actually began the process of malignant cellular growth. Instead, the plaintiff may meet the burden of proving that exposure to defendant's product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiff's or decedent's risk of developing cancer."

The dissent of Mosk J related solely to the court's decision on shifting of the burden: he considered (p 38) that the decision of the majority would deprive numerous plaintiffs suffering from latent diseases caused by exposure to asbestos in the workplace from recovering full compensation.

    32. This survey shows, as would be expected, that though the problem underlying cases such as the present is universal the response to it is not. Hence the plethora of decisions given in different factual contexts. Hence also the intensity of academic discussion, exemplified by the articles of the late Professor Fleming ("Probabilistic Causation in Tort Law" 68 Canadian Bar Review, No 4, December 1989, 661) and Professor Robertson ("The Common Sense of Cause in Fact", 75 Tex L Rev (1996-1997), 1765). In some jurisdictions, it appears, the plaintiff would fail altogether on causation grounds, as the Court of Appeal held that the present appellants did. Italy, South Africa and Switzerland may be examples (see Unification of Tort Law: Causation, ed J Spier, 2000 at pp 90, 102 and 120). But it appears that in most of the jurisdictions considered the problem of attribution would not, on facts such as those of the present cases, be a fatal objection to a plaintiff's claim. Whether by treating an increase in risk as equivalent to a material contribution, or by putting a burden on the defendant, or by enlarging the ordinary approach to acting in concert, or on more general grounds influenced by policy considerations, most jurisdictions would, it seems, afford a remedy to the plaintiff. Development of the law in this country cannot of course depend on a head-count of decisions and codes adopted in other countries around the world, often against a background of different rules and traditions. The law must be developed coherently, in accordance with principle, so as to serve, even-handedly, the ends of justice. If, however, a decision is given in this country which offends one's basic sense of justice, and if consideration of international sources suggests that a different and more acceptable decision would be given in most other jurisdictions, whatever their legal tradition, this must prompt anxious review of the decision in question. In a shrinking world (in which the employees of asbestos companies may work for those companies in any one or more of several countries) there must be some virtue in uniformity of outcome whatever the diversity of approach in reaching that outcome.

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