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30 March 2011 - PI Practitioner

Causation in cases of multiple tortfeasors/sources of damage

Baker v Willoughby [1970] AC 467

The Claimant’s leg was injured as the result of tortious action of one defendant which caused him a loss of earnings. Subsequently, he was shot in the same leg and the leg had to be amputated in consequence.

The House of Lords held that the first tortfeasor remained responsible of the loss of earnings he caused, even after the amputation. The second tortfeasor was only responsible for the additional damage caused.

Performance Cars v Abraham [1962] 1 QB 33

The Claimant’s car was damaged in an accident, for which the Claimant obtained judgment, including a sum to pay for a respray of part of the vehicle. Before that repair had in fact been carried out, the Claimant’s car was involved in a further accident with a new defendant. The damage done in the second accident required the same repair as the damage done in the first: a respraying of that part of the vehicle.

The Court of Appeal held that the second defendant had caused no damage or loss additional to that already caused by the first defendant, and thus the Claimant could recover nothing from the second defendant.

Jobling v Associated Dairies [1982] AC 794

The Claimant suffered back injury at work resulting in a loss of earnings. Subsequently and separately he developed a back condition which would have lead to the same loss in any event.

The House of Lords held that the subsequent non-tortious occurrence of the Claimant’s back condition meant that the employer was only liable for the Claimant’s loss until the onset of the back condition.

Bonnington Castings v Wardlaw [1956] AC 613

The Claimant was exposed to harmful silica dust during the course of his employment with the Defendant. A proportion of the exposure was due to the negligence of the Defendant, and a proportion of the exposure was not due to negligence. The latter was the greater source of dust inhalation.

The House of Lords held that the Claimant nevertheless had a cause of action against the Defendant if its negligence had ‘materially contributed’ to the injury, even if the classic ‘but for’ test would not be satisfied.

Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32

The Claimant contracted mesothelioma as a result of exposure to asbestos dust. The Claimant had negligently been exposed to asbestos dust by more than one employer. The effect of exposure to the dust is not cumulative, and one exposure at any point can cause the disease. The Claimant could not prove which defendant had been responsible for exposing him to the ‘guilty’ dust.

Distinguishing the earlier case of Wilsher v Essex Area Health Authority [1988] AC 1074 (where there had been multiple different potential causes of a disease and the House of Lords held that the claimant was required to show on the balance of probabilities which had caused the disease), the House of Lords held that the Claimant had a cause of action against each defendant where the defendant in question had materially contributed to the chance that the Claimant would suffer from mesothelioma.