UK and Australian application of the "but for" test

Jan 2012 |

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 which break the chain of causation.1

Differences between Australia and 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 (Fairchild),2  Barker v Corus (UK) Plc (Barker)3 and Sienkiewicz v Greif (Sienkiewicz),4  which were not followed in the Australian cases of Amaca Pty Ltd v Ellis (Amaca)5  and Tabet v Gett (Tabet)6.

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 approach to proof of causation.”7 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 Coal Board8 and held that the employers “individually materially increased the risk.”9  

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 to take10 and that employers “are only liable in proportion to their own contribution to the claimant's overall exposure to the risk of harm.”11 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 test”12 and the Fairchild exception applies to cases involving single and multiple exposure to asbestos.

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 “may have been a cause13 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 chance of a better medical outcome.”14  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.  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 result would have [been] obtained in the proceedings.15

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(1) March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506.

(2) 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].
(8) McGhee v National Coal Board [1972] UKHL 7.
(9) 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].

(13) Amaca Pty Ltd v Ellis [2010] HCA 5 at [70].
(14) Tabet v Gett [2010] HCA 12 per Crennan J at [100].

(15) D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 per Toohey J at [143].