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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

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.
 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
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
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.
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
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

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