Category: tort law

“Although, therefore, mesothelioma claims must now be considered from the defendant’s standpoint a lost cause, there is to my mind a lesson to be learned from losing it: the law tampers with the ‘but for’ test of causation at its peril.”

“But for your fault, it would not have happened” is the characteristically to-the-point way that Lord Denning first articulated the ‘but for’ rule of ‘factual’ causation in Cork v Kirby MacLean [1952]. It’s wide-scale adoption, both across criminal and tort law would suggest that in spite of its rather awkward ‘counterfactual’ construction (on this see: Richard Epstein – A Theory of Strict Liability) at the very least, it has a practical application, and captures something of the everyday way in which we construct notions of ‘causation’ and ultimately ‘culpability’ in our lives. But factual matrices are complex, and at times, this perhaps over simplistic paradigm, constructed as it is on ‘necessity’ rather than ‘sufficiency’ (on this see Allen Beever – Rediscovering the Law of Negligence), has threatened to disrupt ‘normative’ notions of ‘fairness’. And so, in what has been essentially a ‘three-stage process’ (as Lord Brown outlines in Sienkiewicz v Greif (UK) Ltd [2011]) in certain, though carefully prescribed scenarios, the courts have been willing to countenance other ways to conceptualise ‘causation’, and so ultimately apportion liability. This ‘departure’ from ‘but for’ causation has met with mixed responses both academically and judicially which is the subject of this essay.

As Lord Hoffmann established in Gregg v Scott [2005], the world, at least in legal terms, is bound by the laws of causality. “Everything ha[s] a determinate cause, even if that cause [is] unknown”; but as Spencer v Wincanton Holdings [2010] clarifies, the law has needed to draw a line under potentially infinite chains of causation, when ultimately it would be “unfair to let it continue”. Historically it has used ‘but for’ causation (coupled with the civilian ‘balance of probabilities’ standard) as one means to achieve that end.

Within even Epstein’s simplest example of tortious causation: ‘A caused B harm’, there is some room for ‘speculation’. Would the patient in Barnett v Chelsea and Kensington Hospital Management Committee [1969] definitely have died if the negligent doctor had in fact attended, could a ‘competent rescuer’ have changed the outcome in the Ogopogo [1971]. Both claimants (McWilliams v Sir William Arrol [1962]/Chester v Afshar [2004]) and defendants (Bolitho v City and Hackney HA [1998]) may behave unpredictably.

But as soon as we start to consider ‘multiple defendants’ (Cook v Lewis & Akenhead [1952]), ‘consecutive causes of the same damage’ (Baker v Willoughby [1970]/Jobling v Associated Dairies [1982]) and ‘damages for loss of a chance’ (Hotson v East Berkshire

Health Authority [1987]/Gregg v Scott [2005]) things start to become much more complex.

But even here the courts have tended to favour ‘certainty’, as they have attempted to weigh up ‘just how certain can we be’ against a required ‘burden of proof’. In most instances the civil ‘balance of probabilities’ sufficed, with the doctrine of ‘novus actus interveniens’ proving adequately ‘robust’ to balance out absurdity and justice (McKew v Holland & Hannen & Cubitts [1969]/Wieland v Cyril Lord Carpets [1969]). Though it too was sorely tested at times (Reeves v Commissioner of Police of the Metropolis [2000]/Corr v IBC Vehicles [2008]).

Malignant Mesothelioma has proven to be the straw that broke the camel’s back:

Itself a condition of inordinately complex ‘pathogenesis’ (on this see: Fairchild v Glenhaven Funerals Services [2002]), it was almost inevitable, that as its connection with certain kinds of asbestos exposure were unravelled, it would impact the way in which the courts considered ‘causation’, and consequently allocated liability for damages.

The story predates Fairchild [2002] and we can see at least two ‘departures from’ perhaps better consider ‘modifications to’ the ‘but for’ test:

A. The ‘material contribution to the harm’ modification

A ‘material contribution to the harm’ as developed in Bonnington Castings Ltd v Wardlaw [1956] was a first step in the direction of current day practice, when classic ‘but for’ causality could not be used to provide Mr. Wardlaw with ‘justice’; there being a fundamental uncertainty as to whether his pneumoconiosis (as an ‘accumulative’ condition) had been caused by ‘tortious’ or ‘non-tortious’ dust exposure.

B. The ‘material increase in risk’ modification

These uncertainties were to become even greater in McGhee v National Coal Board [1973], where much as in mesothelioma, just how dermatitis came about had not been definitively established; and in what can be seen as essentially a ‘benefit of the doubt’ exercise, the court established that it was ‘sufficient’ for a plaintiff to show that the defendant’s breach of duty made the ‘risk of injury’ more ‘probable’ even though it was ‘uncertain whether it was

the actual cause’. McGhee was however distinguished in Wilsher v Essex Area Health

Authority [1988] where the ‘multifactorial’ nature of causation regarding ‘retinopathy of prematurity’ was used to negate ultimate liability.

Thereafter, Lord Brown’s three-stage process (as outlined in Sienkiewicz [2011]) proceeds as follows:

• Fairchild v Glenhaven Funerals Services [2002] • Barker v Corus UK Ltd [2006]
• Compensation Act 2006 (section 3)

Fairchild v Glenhaven Funeral Services [2002] represented a trio of appeals to the House of Lords, and resulted in a lengthy and complex judgment. With three complainants and a series of successive potential tortfeasor employers, the court wrestled to provide a coherent rationale to their decision, in particular regarding awards. Ultimately, the court followed the McGhee ‘approach’ (though as had been discussed in Wilsher v Essex Area Health Authority [1988] the case lacked a clear ratio) of a ‘material increase in risk’, and allocated liability between the employers according to ‘joint and several’ liability.

C . Fairchild/Barker exception + Compensation Act 2006 – a true ‘departure’

Just four years later in Barker v Corus UK [2006] this would be overturned, to much consternation both academic and from concerned parties, with a return to ‘several’ liability. The condition’s peculiar pathogenesis meaning that in many instances, chasing down potential but often long gone ‘tortfeasors’ proved to be a fruitless task.

So soon after, Parliament intervened and (as Lord Brown explained) Section 3 of the Compensation Act 2006 was enacted, in what might be considered a true ‘departure’ from the ‘but for test, with the “sole effect [being] to reverse the House’s decision in Barker’s case on the issue of quantum”; resulting (when coupled with the Fairchild/Barker ‘principle’) in what Lord Phillips has called ‘draconian consequences’. As Lord Brown affirmed mesothelioma claims must now be considered from the defendant’s standpoint a lost cause.

We are left to answer the all important question has this all been for the good, which was certainly the chorus after the initial Fairchild judgment, in the light of the devastating consequences of this, at the time, poorly understood condition; or is the current situation, as Lord Brown suggests entirely unsatisfactory?

But in fact this question elides three separate conundrums:

1. the relative worth of the ‘but for’ test
2. does ‘justice’ at times require its modification

iii. how should sufferers of ‘indivisible’ conditions such as dermatitis/mesothelioma be

compensated

The ‘test’ has been heavily academically criticised; with its potential for ‘absurdity’ (see: Richard Epstein – A Theory of Strict Liability), and Allan Beever arguing that it has little place in ‘overdetermined’ conditions such as mesothelioma. Alternative models (such as Stapleton’s targeted ‘but for’ test and Richard Wright’s NESS test) do exist, but the common law is slow to incorporate ideas that are not its own ‘offspring’, and Lord Brown’s defence of ‘but for’ causality resides in the “clarity, consistency and certainty in its application”. A closer reading of his judgment, reveals that his principal concern is in fact damage allocation (‘aliquot’ as opposed to ‘in solidum’), and how “quixotic the path by which [the current day position] has been arrived at”.

One senses he feels that Section 3 Compensation Act 2006 has robbed the common law of some of its flexibility and nuance, and he is consequently ‘obliged’ to decide the case in a way that goes against his better judgement. Citing that both Bonnington Castings and Fairchild, in fact did not consider ‘apportionment’ he goes on to suggest that on the facts, Greif’s liability (prior to the 2006 Act) would not have been held to be absolute. Fairchild already represented a ‘rock of uncertainty’ and the law would not benefit from any further ‘anomalies in the system’ (Lord Brown having in mind the “supposedly critical distinction between so-called ‘single agent’ and ‘multiple agent’ cases”).

However justice, just as it requires “clarity, consistency and certainty” does require a modicum of flexibility. Epstein has the ‘luxury’ if you will of being able to criticise the ‘but for’ test, in the ‘certain’ knowledge he achieves his ‘certainty’ through strict liability. Whilst it is worth remembering that at the other end of the doctrinal spectrum (tortious negligence) Cork v Kirby MacLean [1952] though known for the birth of the ‘but for test’,

was also every bit a case concerning ‘remoteness’ and the ‘fairness’ of damages allocation in the light of the Law Reform (Contributory Negligence) Act, 1945.

Shifting a causal paradigm from a ‘balance of probabilities’ to a ‘might have caused’ is no small thing; and the Fairchild ‘exception’ has recently (in Heneghan v Manchester Dry Docks Ltd [2016]) been extended to cover ‘asbestos induced’ pulmonary carcinomas. But there is a danger that in the form of Section 3 Compensation Act 2006, Parliament has gone that little bit too far, robbing the common law of some of its nuance (say in the form of Lord Bingham’s 6 carefully crafted Fairchild criteria), that also afforded defendant employers a certain degree of necessary protection.

Wherever this debate ends, and it appears to be very far from over, there can be little doubt that mesothelioma (and the hugely raised awareness in relation to the condition) has impacted the judiciary’s thinking in relation to causality just as much as it has blighted the lives of those who were, or indeed are, unfortunate enough to have been exposed to its horrors. However it is approached there are no easy answers. At one end of the equation we have the victims and/or relatives of a devastating, relentlessly fatal condition possibly ‘caused’ many years before; at the other employers facing almost certain liability, following anything more than a minimal degree of negligent exposure to asbestos fibres. But it is arguable that in terms of judicial notions of ‘causality’, certainty has come at a cost; ‘aliquot’ apportionment might have been one way to resolve this conundrum without unnecessarily sacrificing one of the common law’s most loyal workhorses, in the form of ‘but for causation’, on the altar of certainty.

So imagine their joy at a brand new, as yet to be decided, case.

Just such an opportunity has been given to all tort students, as the media is awash with the libel case that is unfolding between @MsJackMonroe and @KTHopkins. I have knowingly used the Twitter monikers of the parties, otherwise known as food writer and ‘campaigner’ Jack Monroe, and Mail Online columnist Katie Hopkins, as much if not all of the case will focus on what constitutes libel on the social media platform Twitter.

The facts are not disputed.

The Twitter feed (following an incident in which memorial to the women of the second world war in Whitehall was vandalised with the words “Fuck Tory scum” during an anti- austerity demonstration) ran as follows:

@KTHopkins: Scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?

@MsJackMonroe: I have NEVER ‘scrawled on a memorial’. Brother in the RAF. Dad was a Para in the Falklands. You’re a piece of shit.

followed by a second message:

@MsJackMonroe: Dear @KTHopkins, public apology + £5K to migrant rescue and I won’t sue. It’ll be cheaper for you and v satisfying for me

Hopkins deleted the first tweet but responded with:

@KTHopkins: Can someone explain to me – in 10 words or less – the difference between irritant @PennyRed and social anthrax @MsJackMonroe.

The significance of @PennyRed is that this was a case of mistaken identity.

Minutes previously Laurie Penny, a columnist for the New Statesman, had tweeted from her account @PennyRed that she “[didn’t] have a problem” with the vandalism as a form of protest, as “the bravery of past generations does not oblige us to be cowed today”; Hopkins had crossed her wires and the rest of the exchange is history.

Now any tort student will be aware of the basics when approaching a defamation case, and a large number of answers will open in the following way:

Winfield defined defamation as “The publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him.” to which must be added the requirement for ‘serious harm’ as per s.1 Defamation Act 2013 etc.

But here it is likely that even the more seasoned commentators will begin to run dry. The generalities may well flow; with even the Ministry of Justice (quoting Eric Brendt) acknowledging that prior to reform:

“the previous law on libel cases had been criticised as being antiquated, costly and unfair, which resulted in a chilling effect on freedom of expression and the stifling of legitimate debate.”

but just how this particular case will be decided remains in the balance with Mr Justice Warby reserving judgment until later this month.

With Hopkins’ counsel trying to diminish the impact of the events, likening Twitter to the ‘wild-west’ of social media; William Bennet (Monroe’s barrister) was having none of it, actively rejecting the idea that “people don’t believe what they read on Twitter”.

Even though the tweet was deleted some 2 hours later, @KTHopkins has some 681.7 thousand followers, and is herself no stranger to actions in defamation. The Guardian confirming that “in December, Mail Online was forced to pay £150,000 to a British Muslim family over a column by Hopkins which falsely accused them of extremism after they were stopped by US immigration officials en route to Disneyland.” Few can doubt the unpleasantness of the content. Certainly lacking in any, let alone a ‘substantial degree’ of

truth, the question will certainly focus on the potential for serious harm as to Monroe’s ‘reputation’.

As her counsel stated:

“Even if Twitter is the wild west, which we dispute, that doesn’t exclude it from the operation of the law. Even the wild west had local marshals to ensure people weren’t bullied.”

The outcome will be watched carefully by all tort students and scholars, as we will get to learn whether the Defamation Act 2013 really does have adequate ‘nuance’ to protect an individual’s reputation, and/or we have moved into a new era of tweet and be damned.

Sections 2–4 of the Defamation Act 1996 might have offered Hopkins a way out. Though not strictly a ‘defence’, more a form of ‘settlement’; nonetheless this would have required her to publish a ‘correction and apology’, and to pay Monroe determined compensation and costs. With self-reflection not exactly being Hopkins’ strong suit she apparently decided to play hard-ball (see: https://www.theguardian.com/uk-news/2017/mar/01/katie-hopkins-should- pay-price-over-libel-trial-strategy-say-lawyers) it remains to be seen if such a non- apologetic strategy works in (or against) her favour.

Your thoughts on the matter would be every bit appreciated; or you could just tweet me at @markpummell if you think that advisable.

Happy Studies