22nd April 2024
·
Law of Torts – Personal Injury Law –
Negligence – Causation - Material Contribution to the Risk.
Negligence
is a fundamental subject under the law of torts/personal injury, in order to
find the respondent liable under negligence, the claimant must establish that
the respondent (i) owed them a duty of care, (ii) the respondent breached the
said breach of care subsequently (iii) causing them damage or injury. On that basis, the author will begin by
providing a general overview of causation specifically how the ‘but for’ test
is employed when establishing causation, further, an exception or limitation to
the said test will be discussed to answer the question; can multiple
parties be held liable under negligence where the actual tortfeasor is unknown?
The ‘But for’ Test
Causation
is important in establishing the tortious liability of the respondent. Proving
Causation entails that there must be a link between the damage occasioned on
the claimant and the respondent’s actions or omission. This is to say, the
claimant must prove that the respondent was responsible or caused the damage
occasioned on them. Put otherwise-: ‘but for’ the respondent, the claimant
would not have suffered the damage/injury.
It therefore follows that where a claimant fails to prove that the respondent
caused the damage occasioned on them, then their claim fails. In Barnett
v Chelsea & Kensington Hospital [1969 1 QB 428],
the
claimant went to the hospital (respondents) complaining of severe stomach pains
and vomiting. They were seen by a nurse who informed the doctor on duty, the
doctor told the nurse to send the claimant back home and that they would be
attended to in the morning. Mr Barnett died five (5) hours later from arsenic
poisoning. It was shown that the doctor could not have done anything to prevent
Mr Barnett’s death. The claimant sued the hospital under negligence claiming
that Mr Barnett's death could have been prevented by the doctor had they attended
to Mr Barnett.
The
Court held that the hospital was not liable as the doctor’s failure to examine
the patient did not cause his death. The court employed the ‘but for’ test as
follows; would Mr Barnett have died but for the doctor not attending to him?
The Court answered in the affirmative, thus the hospital could not be liable. Essentially, the Court held that the hospital
could not be held liable because Mr Barnett would have still died even if the
doctor had attended to them (N.B.
this conclusion was supported by the evidence presented to the Court). Therefore,
the law on negligence dictates that the respondent cannot be held liable if it
is not shown that they were the direct cause of the damage occasioned to the
claimant.
Limitation to The ‘But for’ Test
As shown above, for a claimant to succeed under negligence, they must prove that it was the respondent’s direct action (s) or omission (s) that caused the actual damage occasioned by the claimant, the claimant must establish this by correctly applying the ‘but for’ test. The ‘but for’ test seems to be an absolute rule, however, that is not the case. As a limitation or an exception to the ‘but for’ test rule, the principle of ‘material contribution to the risk’ allows a claimant to successfully sue multiple respondents under negligence even when it is not clear who among them was the direct cause of the damage occasioned on the claimant. ‘Material contribution to the risk’ is a principle that applies when there is an equal or reasonable possibility that each among the multiple respondents may have caused the damage sustained by the claimant. Moreover, it must be shown that there exists a link or relationship between the claimant and each and every party among the multiple respondents which as such brings about the possibility of any among the multiple respondents being responsible for the damage the claim incurred. This principle was espoused in the landmark case of Fairchild v Glenhaven Funeral Service and Others [2002 UKHL 22], in the case the deceased contracted lung cancer which was caused by exposure from asbestos. The deceased during his lifetime worked for a number of different employers whom had all negligently exposed their employees to asbestos. [for context sake; asbestos takes 20-25 years later for it to manifest once contracted and by the time it manifests, it is too late to be treated thus death is what follows. A single inhalation of asbestos suffices to later cause cancer].
The
deceased wife sued all the employers the deceased had worked for during the
deceased’ lifetime, the common factor among the employers sued were that they
all exposed their employees to asbestos and that the deceased worked for all of
them during his lifetime. The claimant sued multiple employers because of the
difficulty to point out a single employer whom the deceased had worked for at
the time they inhaled the asbestos. The issue before the Court was whether the
claimant could successfully claim against all the respondents despite failing
to satisfy the ‘but for’ test under causation? and; whether the respondents
could be held liable under negligence due to the possibility that they deceased
may have inhaled asbestos while working for either of them? The Court deviated
from the traditional ‘but for’ test approach and provided an exception to the
rule. The Court held that the respondents were all liable as there was strong
evidence to show that the deceased had inhaled asbestos while working for
either of the respondents whom negligently exposed their employees, as the
deceased, to asbestos.
Basically,
the respondents were held liable on the basis that they all ‘martially
contributed to the to risk’ suffered by the claimant, put otherwise,
the respondents were held liable even though the claimant’s loss could not be
directly attributed to either of the respondents, but because of the evidence
showing that the respondents’ engagement or relationship with the deceased invited
the possibility of the deceased inhaling asbestos during their employment with
either of the respondents. It is important to note that the Court took
cognizance of the fact that the reason why a single respondent could not be
pointed as to be solely responsible for the deceased inhalation of asbestos,
was due to scientific limitations and the impossibility of ascertaining the
actual period that the asbestos (that caused the cancer) was firstly inhaled by
the deceased. Another thing to draw from the case is that for the Principle of material
contribution to the risk to apply, the claimant must establish a link
or relationship between them and all the respondents being sued, and the link
or relationship so established must speak to the damage occasioned to the
claimant. In casu the claimant
established this link or relationship by firstly showing that the deceased had
worked for all of them albeit at different times during their lifetime,
secondly, all the respondents’ engagements left the deceased exposed to
asbestos.
Contextual Application in Zambia
The
judgement in Fairchild v Glenhaven Funeral Services and Others can be
fundamentally applied in the Zambian context. Zambia is well known for her
mineral exportations and as such, the mines on the copper belt province and in
North Western province attract thousands of mine workers, therefore, mines are
generally associated with hazardous substances such as silica dust, coal dust,
radon gas, asbestos inter alia that
if inhaled gradually develop and manifest after several years thereby causing
several lung diseases such as, silicosis, cancer of the lungs. Due to the fact
that such substances gradually develop and manifest several years after the
first inhalation, mine workers are often affected way after the even leave
employment thus making it difficult for the mine worker to satisfy the
traditional ‘but for’ test in the event that the worked for several mine
companies.
However,
applying the ‘material contribution to the risk’ principle would mean that
where a former mine worker who worked for several mining companies suffers from
a disease as result of inhalation of substances like silica dust and asbestos,
they can successfully sue all the mine companies (engaged in the exposure of
silica dust or asbestos) that they worked for during their employment. Here, the
former mine worker must show that they did not engage in any other activity
that would have left them exposed to the said substances that caused their disease,
except for mining. The example of a former mine worker should not serve as an exhaustive
circumstance in which the material
contribution the risk principle can be employed. Another applicable example
is where two negligent drivers collide thereby causing harm to a pedestrian at
the same time, taking into the facts of such a case it may indeed be difficult
to prove which of the negligent drivers hit the pedestrian therefore, both may
be found liable for their negligent driving.
In
summation, it is trite that the ‘but for’ test is used to prove causation- the respondent’s
action (s) or omission (s) were they direct cause of the damage occasioned on
the claimant. However, as an exception to that rule, the ‘material contribution to the
risk’ principle if employed, may hold multiple respondents liable for
the damage caused to the claimant. This rule is effected where multiple
respondents are found to have all contributed or in effect, caused the damage
occasioned on the claimant and due to scientific limitations it is impossible
to single out one respondent to have been the direct and immediate causer of
the damage. But to succeed, the claimant
must establish a link or relationship between them and the respondents in order
to show that the damage occasioned on them could only be sustained from the
relationship they shared. Indeed, applying the ‘material contribution to the
risk’ principle dictates that; multiple parties be can held liable
under negligence where the actual tortfeasor is unknown.
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