APPORTIONMENT OUTSIDE THE MESOTHELIOMA CASES

If the court applies the ‘material contributory cause’ test, for what proportion of the claimant’s losses will the defendant be liable? Where the damage to the claimant is mesothelioma then if the Fairchild principle is made out, the defendant will be jointly and severally liable for the whole of the damage. However, in diseases where the condition is a cumulative one and the extent of the defendant’s contribution is known, they will only be liable to that extent. (Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] 1 All ER 881; Performance Cars v Abraham [1962] 1 QB 33.) It may, however, be difficult to establish the extent of the defendant’s contribution.

Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421

 The claimant was exposed to asbestos dust for 40 years and developed asbestosis. He had worked for the defendants for half that time and for other employers for the rest of the time. The trial judge found the defendants liable only for the damage they had caused and the claimant appealed on the ground that once he had established material contributory cause he was entitled to recover the full extent of his loss. The Court of Appeal rejected the appeal and upheld the trial judge’s deduction of 25 per cent from general damages. McGhee was distinguished as there the claimant had argued that he was not liable at all, not that he was only liable up to the extent of his contribution. It is clear from Holtby that it is open to a defendant to argue and prove that he was only liable for a particular extent of the damage. In this case the argument was not too difficult to make as asbestosis has a linear progression and all the dust contributed to the disability. (Compare with Fairchild.) On this basis the 25 per cent deduction is generous and should have been 50 per cent. Although every case will vary on its own facts, it is probably worth looking at one final example in a new area. The next case is in the area of an employer’s liability for repetitive strain injury.

SUPERVENING OR OVERTAKING CAUSES

 Where the causal effect of the defendant’s fault is overtaken by a later event or by the emergence of a latent condition, neither of which is related to the original tort, the ‘but for’ test may not provide an answer. What is the position when the first defendant is sued and the second defendant has caused similar or greater damage? Baker v Willoughby [1970] AC 467 The plaintiff suffered injuries to his left leg as a result of the defendant’s negligence. The plaintiff went to work in a new job after the accident and while at work he was shot in the left leg during an armed robbery. As a result, the plaintiff’s leg had to be amputated. The armed robbers, needless to say, did not stay around to be sued. The defendant argued that any liability which he had extended only from his breach of duty until the armed robbery. At this point, the effects of his negligence were overtaken by the effects of the second tort (the armed robbery). Applying the ‘but for’ test would have produced this result. But the House of Lords refused to apply the ‘but for’ test. First, the plaintiff was compensated for the loss he suffered as a result of the injury, not for the injury itself. The second tort had not reduced the plaintiff’s suffering or his reduction in earning capacity. Second, even if the plaintiff could have sued the armed robbers, they would only have been liable for depriving the plaintiff of a damaged left leg. So if the defendant’s argument succeeded, the plaintiff would be left under-compensated. The clear injustice that would have been caused by denying liability to the plaintiff in this case was avoided by the House of Lords abandoning the ‘but for’ test in order to do justice. This is an approach which has subsequently been taken in other areas. (See e.g. Fairchild v Glenhaven and Chester v Afshar [2005] 1 AC 134.) Where the claimant has already suffered damage as a result of the first tort, the second tortfeasor is only liable for the additional damage he has caused on the basis of the but for test.

Performance Cars v Abraham [1962] 1 QB 33

The second defendant negligently collided with the plaintiff’s Rolls-Royce. The car had previously been in a collision caused by the negligence of the first defendant. The second defendant damaged the same part of the car as the first defendant. The court held that the second defendant was not liable for the cost of a respray because, at the time of the accident, the car was already in need of one. (Affirmed by the Court of Appeal in Halsey v Milton Keynes General NHS Trust [2004] 4 All ER 920.) In Baker the court decided that the causal effect of the first tort continued despite the fact that the leg would have been lost as a result of the second tort. The situation is apparently different where the tort is followed by a supervening illness.

Jobling v Associated Dairies Ltd [1982] AC 794

 The plaintiff suffered an injury to his back at work in 1973, caused by the defendant’s breach of duty. The injury reduced the plaintiff’s earning capacity by 50 per cent. Before the trial of the action in 1979 the plaintiff was discovered to be suffering from a back disease, unrelated to the injury, which rendered him totally unfit for work by 1976. The House of Lords applied the ‘but for’ test to restrict the defendant’s liability for loss of earnings to the period before the onset of the disease. The House of Lords criticised the reasoning in Baker, but the decision survives. Where there are two successive torts, the first tortfeasor’s liability is unaffected by the second tort. Where the tort is followed by a disabling illness, this must be taken into account in assessing the tortfeasor’s liability.

Lord Wilberforce:

We do not live in a world governed by the pure common law and its logical rules. We live in a mixed world where a man is protected against injury and misfortune by a whole web of rules and dispositions with a number of timid legislative interventions. To attempt to compensate him on the basis of selected rules without regard to the whole must lead either to logical inconsistencies or to over or under-compensation. As my noble and learned friend Lord Edmund-Davies has pointed out, no account was taken in Baker v Willoughby of the very real possibility that the plaintiff might obtain compensation from the Criminal Injuries Compensation Board. If he did in fact obtain this compensation he would, on the ultimate decision, be over-compensated. In the present case, and in other industrial injury cases, there seems to me no justification for disregarding the fact that the injured man’s employer is insured (indeed since 1972 compulsorily insured) against liability to his employees. The state has decided, in other words, on a spreading of risk. There seems to me no more justification for disregarding the fact that the plaintiff (presumably; we have not been told otherwise) is entitled to sickness and invalidity benefit in respect of his myelopathy, the amount of which may depend on his contribution record, which in turn may have been affected by his accident. So we have no means of knowing whether the plaintiff would be overcompensated if he were, in addition, to receive the assessed damages from his employer, or whether he would be under-compensated if left to his benefit. It is not easy to accept a solution by which a partially incapacitated man becomes worse off in terms of damages and benefit through a greater degree of incapacity. Many other ingredients, of weight in either direction, may enter into individual cases. Without any satisfaction I draw from this the conclusion that no general, logical or universally fair rules can be stated which will cover, in a manner consistent with justice, cases of supervening events, whether due to tortious, partially tortious, non-culpable or wholly accidental events. If rationalisation is needed, I am willing to accept the ‘vicissitudes’ argument as the best available. I should be more firmly convinced of the merits of the conclusion if the whole pattern of benefits had been considered, in however general a way. The result of the present case may be lacking in precision and rational justification, but so long as we are content to live in a mansion of so many different architectures this is inevitable.

Both the above cases are personal injury cases and tort damages are not the only form of compensation available. Baker is based on a policy of not undercompensating the claimant. Jobling is based on not over-compensating the claimant. The House of Lords pointed out in Jobling that the claimant in Baker would have been entitled to compensation from the Criminal Injuries Compensation Scheme and there was therefore a danger of over-compensation. This is not entirely correct, as the only compensation would have been for the damage caused by the armed robbery. Had the defendant been found not liable in Baker, the claimant would still have remained uncompensated for his original injuries. In Jobling, the claimant might have been able to claim social security benefits partially to compensate for his losses. But it is still possible to fall between tort damages and entitlement to social security. The distinctions between the two cases are not convincing and the apparent conflict and the difficulties posed by causation in the industrial disease and medical negligence cases show the drawbacks of using the tort system as a method of compensating for personal injuries. The court was satisfied in Jobling that the tort and the onset of the disease were unrelated and the claimant would have suffered the loss despite the defendant’s negligence. The test applied was on the balance of probabilities, but for the defendant’s negligence would the damage have occurred. An Australian decision took a different approach to future hypothetical events. In Malec v JC Hutton Pty Ltd (1990) 64 ALJR 316 the Australian High Court stated that, in these cases, the balance of probabilities test should be modified. The claimant had suffered an occupational disease for which his employer was liable but it was found that it was more likely than not that he would have contracted the disease anyway. Instead of applying a cut-off point beyond which no damages could be recovered, the court awarded damages subject to a reduction for the chance that he would have suffered the disease anyway