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Part  5 The basic criteria for a compensation claim

I.  Damage

» forms of action « recognised in the writ system that survived until 1875, namely, trespass and the action on the case ( or, more simply, » case « )127. Most of the modern English law of tort can be traced directly back to these two actions. For present purposes, the main point of distinction between the two actions is that trespass was actionable on proof of the specified interference ( to the person, to goods or to land ), even if the claimant suffered no damage, while, in case, damage was the gist of the cause of action. The three forms of trespass recognised under the writ system – trespass to the person ( sub-divided into assault, battery and false imprisonment ), trespass to goods, and trespass to land – survive in modern English tort law. Case, by contrast, is no longer recognised as such, but a large number of modernday actions can be identified as its descendents, and follow it in requiring proof of damage. By far the most important of these descendents, both practically and conceptually, is the tort of negligence. Here, damage plays a crucial, if somewhat concealed, role in determining whether – as must be shown if liability is to be imposed – the defendant owed the claimant a duty of care. Here, the type of damage suffered by the claimant is given particular significance ( eg whether it is physical damage or pure economic loss or mental injury ). However, such classifications really go to the question of » scope of liability « rather than damage as such are so are considered further at no 5 / 141 ff.

126B. Rudden, Torticles ( 1991-1992 ) 6 / 7 Tulane Civil Law Forum ( Tul Civ LF ) 105.

127For an account of the historical development, see J.H. Baker, An Introduction to English Legal History ( 2005 ).

A.Torts actionable per se

5 / 68 For certain torts, a cause of action may come into existence without proof of actual damage or loss128, and in such cases the prohibited infringement of the claimant’s sphere itself is the tort. Nominal damages may be recovered and, in appropriate cases, an injunction may be granted; but, if damages are sought for particular loss, a causal connection between the tort and the alleged loss must be shown.

B.Different types of damage: a hierarchy of protected interests

5 / 69 Generally, one may say that the common law attaches more or less weight to particular types of damage in accordance with an implicit underlying hierarchy of protected interests. Interests in the person and in property are given the highest protection; personality interests ( with the exception of reputation ) and purely economic interests are given lesser protection. Thus there is no general tort of invasion of privacy129, even though particular torts protect individual aspects of the right ( eg informational privacy )130.

5 / 70 For some, this hierarchy of values is self-evident, but there have also been some interesting attempts to explain certain aspects of it. Thus, for example, Witting has sought to explain why purely economic losses are not generally recoverable in the tort of negligence, while losses associated with damage to property are131. To this end, he develops what he terms a » personality thesis «: » whereas an individual’s personality is partly constituted by the property that he or she owns, so that property can be seen as essential to the ways in which individuals constitute and define themselves, no such claim can be made with respect to mere abstract holdings of wealth «132. In the author’s view, this consideration better justifies the distinction the law makes between property damage and pure economic loss than other explanations that have been advanced, for example, that purely economic losses are difficult to prove or liable to be indeterminate in nature. It does not entail, however, that purely economic losses should never be recoverable in negligence.

128For example trespass to the person, trespass to goods and trespass to land, as well as libel and slanders actionable per se. Cf Watkins v. Secretary of State for the Home Department [ 2006 ] UKHL 17, [ 2006 ] 2 AC 395, deciding that damage remains an element of the tort of misfeasance in public office and that liability does not arise for invasion of a constitutional right per se.

129Wainwright v. Home Office [ 2003 ] UKHL 53, [ 2004 ] 2 AC 406.

130See Campbell v. MGN Ltd. [ 2004 ] UKHL 22, [ 2004 ] 2 AC 457.

131C. Witting, Distinguishing between Property Damage and Pure Economic Loss in Negligence: A Personality Thesis ( 2001 ) 21 LS 481.

132Ibidem 481.

C.Damage in specific torts

1.Public nuisance

in transient form ), in respect of which » special damage « must generally be proven. However, under the Defamation Act 1952, sec 3 it is provided that it is not necessary to allege or prove special damage in the following cases: ( a ) if the words upon which the action is founded are calculated to cause pecuniary damage to

133J. Stephen, A Digest of the Criminal Law ( 1877 ) 108 approved by Lord Bingham in R. v. Rimmington [ 2006 ] 1 AC 459 at [ 36 ].

134Hunter v. Canary Wharf Ltd. [ 1997 ] AC 655.

135Salvin v. North Brancepeth Coal Co. [ 1873 ] Law Reports ( LR ) 9 Chancery Appeal Cases ( Ch App ) 705.

136Supreme Court Act 1981, sec 50; Shelfer v. City of London Electric Lighting Co. [ 1895 ] 1 Ch 287.

D. Primary and consequential damage

5 / 74 There is no formal category of » consequential loss « in English tort law and no particular difficulty with the recovery of compensation for it. Thus, for example, a carpenter whose tools are taken away is entitled to damages not just for their value but also for any proven disruption of his trade as a consequence138. However, a number of writers have adopted consequential loss as a category for the purposes of exposition139. Moreover, in torts concerning damage to property, a distinction is drawn between the infringement of the claimant’s property interest in itself, and losses consequential upon it. To the latter, a test of remoteness applies – and the ordinary rules of novus actus interveniens – but liability for the infringement itself appears not to be subject to the same requirements, as it is not negated or reduced by the intervention of unforeseen circumstances beyond the defendant’s control140. Lastly, it may be noted in this context that there are some categories of case in which English law limits the ability of a » secondary « victim to recover damages for harm suffered in consequence of an injury suffered by, or threatened to, the » primary « victim – most notably where the secondary victim’s injury is psychiatric141. In such circumstances, the secondary victim is owed a duty of care only where there was a relationship of love and affection with the primary victim, and the secondary victim was at the scene of the accident or came upon its immediate aftermath142.

137Joyce v. Sengupta [ 1993 ] 1 WLR 337.

138Bodley v. Reynolds ( 1846 ) 8 QB 779, 115 English Reports ( ER ) 1066.

139See, eg, H. McGregor, McGregor on Damages 18 ( 2009 ) § 1–36, and generally K. Oliphant, Aggregation and Divisibility of Damage in England and Wales: Tort Law, in: idem ( ed ), Aggregation and Divisibility of Damage ( 2009 ) 95 ff, no 9 ff.

140Kuwait Airways Corporation v. Iraqi Airways Co. [ 2002 ] UKHL 19, [ 2002 ] 2 AC 883. A comparable distinction also applies in the tort of deceit.

141However, the rescuer cases indicate that this factor is not always an obstacle to the establishment of liability.

142Alcock v. Chief Constable of South Yorkshire [ 1992 ] 1 AC 310.

E.Loss of profits

Loss of profits is in principle recoverable in an action for negligence, but, when 5 / 75 it is not consequential on physical damage to the claimant’s property or person,

it constitutes pure economic loss in respect of which no duty of care will generally arise143. It may be noted that it is the category » pure economic loss «, not the category » loss of profit « as such, to which significance is attached in English law.

F.Pecuniary and non-pecuniary damage

The concepts » pecuniary loss « and » non-pecuniary loss « play a role mainly in the 5 / 76 assessment of damages for personal injury. To an English lawyer it seems odd to

treat these concepts as providing a categorisation of » damage « rather than » damages «: the question whether there is any damage at all is prior to the question of the pecuniary and non-pecuniary losses flowing from it. Be that as it may, there is no particular difficulty with the recovery of damages for non-pecuniary loss in English tort law. Indeed, it has been said that in tort, in contrast with the law of contract, » non-pecuniary losses flourish «144. The leading work on damages identifies five heads of non-pecuniary loss: ( a ) pain and suffering and loss of amenities ( PSLA ); ( b ) physical inconvenience and discomfort145; ( c ) social discredit ( mainly limited to claims in defamation ); ( d ) mental distress; and ( e ) loss of society of relatives ( a statutory claim under Fatal Accidents Act 1976, sec 1A ).

1.PSLA

Of the various forms of non-pecuniary loss, the most frequently encountered in 5 / 77 practice is PSLA, which is one of the basic heads of damage where a tort results in physical injury to the claimant. The two components of the loss – pain and suffer-

ing, on the one hand, and loss of amenities on the other – are regarded as distinct, even though the practice is to award a single global sum encompassing both as-

143Spartan Steel & Alloys Ltd. v. Martin & Co. ( Contractors ) Ltd. [ 1973 ] QB 27.

144McGregor, McGregor on Damages 18 § 3-002.

145Awards for physical inconvenience and discomfort are usually included in the award for pain, suffering and loss of amenities, but this is not possible where there is no physical injury, and it is in such cases that physical inconvenience and discomfort forms a separate head of damages. See eg Mafo v. Adams [ 1970 ] 1 QB 548, CA ( deceit ). Contrary to the statement in McGregor, McGregor on Damages 18 § 3-009, personal inconvenience and annoyance is not actionable damage in the tort of private nuisance as private nuisance is a tort to land, not a tort to the person: Hunter v. Canary Wharf Ltd. [ 1997 ] AC 655. Damages may, however, be awarded to the extent that the interference causing the inconvenience detrimentally affects the value of the claimant’s land.

5 / 78 As the leading text observes, » [ m ]ental distress is not by itself sufficient damage to ground an action … However, once liability has been established, then in certain torts compensation for injury to feelings may be included in the damages … « 150. Torts where such awards are possible include assault and battery, defamation, deceit and the statutory torts of sex, race and disability discrimination151. Compensation for mental distress may also be awarded in respect of a wider range of torts – including torts to property – under the head of aggravated damages152. Torts where damages for mental distress may not be awarded include private nuisance153 and conspiracy154.

146These are based on the tariffs indicated in guidelines promulgated by the Judicial Studies Board.

147Lim Poh Choo v. Camden and Islington Area Health Authority [ 1980 ] AC 174.

148H. West & Son Ltd. v. Shephard [ 1964 ] AC 326.

149Judicial Studies Board.

150McGregor, McGregor on Damages 18 § 3-011.

151Sex Discrimination Act 1975, sec 66( 4 ); Race Relations Act 1976, sec 57( 4 ); Disability Discrimination Act 1995, sec 25( 2 ).

152See no 5 / 49 above. As regards the award of aggravated damages in the torts of trespass to land and trespass to goods, see P. Giliker, A » new « head of damages: damages for mental distress in the English law of torts ( 2000 ) 20 LS 19.

153Hunter v. Canary Wharf Ltd. [ 1997 ] AC 655.

154Lonhro v. Fayed ( No 5 ) [ 1993 ] 1 WLR 1489.

G. Non-pecuniary loss and legal persons160

English law does not formally exclude the possibility of awarding damages for 5 / 82 non-pecuniary loss to a legal person. Admittedly, a corporation cannot suffer

» pain « or » distress « as such161, but it is accepted that it may suffer » social discredit «. Consequently, it has long been recognised that a trading corporation can

155[ 1897 ] 2 QB 57.

156[ 1897 ] 2 QB 57, 58 f.

157Hunter v. Canary Wharf Ltd. [ 1997 ] AC 655, 707 per Lord Hoffmann; Wainwright v. Home Office

[ 2004 ] 2 AC 406 at [ 44 ] per Lord Hoffmann.

158Wong v. Parkside Health NHS Trust [ 2001 ] EWCA Civ 1721, [ 2003 ] 3 All ER 932.

159Protection from Harassment Act 1997, sec 1( 1 ), ( 2 ).

160Doctoral research currently being pursued by V. Wilcox may require a re-evaluation of the analysis in the paragraph below in due course.

161And hence is not a person that can suffer » harassment « under the Prevention of Harassment Act 1997: Daiichi UK Ltd. v. Stop Huntingdon Animal Cruelty [ 2004 ] 1 WLR 1503.

loss still seems to have been treated as non-pecuniary. A very large sum for loss of enjoyment of a holiday ( £ 4,000 ) was awarded in Borton v. First Choice Holidays & Flights Ltd. [ 2007 ] CLY 3253, but the claimant there was getting married and, having gone down with food poisoning, was unable to walk to her ceremony on the beach, or to eat or drink anything at the reception; her subsequent honeymoon was also ruined. The award of £ 850 in McMullen ( claimant unable to go on the rides at Disneyland ) is more typical.

But it may perhaps be questioned if this analysis would prevail if the claimant was prevented entirely from taking a holiday that he had already paid for.

the quantum of awards depending upon the age of the property in question. Thus, where a city corporation lost the use of one of its buses for 69 days as the result of a collision caused by the negligence of another driver, but used one of the reserve buses it maintained for emergencies while the damaged vehicle underwent repairs, they were deprived of a valuable chattel and entitled to substantial damages calculated by reference to the daily cost of maintaining a bus in the reserve fleet173. This could be considered to produce a sum roughly equivalent to the chattel’s value to its owners, and had the merit of providing a reasonably stable basis for calculation that was as fair as possible to each side. The risk of this approach is that it can be seen to put » a premium upon inefficiency «174 insofar as higher maintenance costs would lead to higher damages, but in the case of property that

depreciates rapidly in value the advantages may be considered to outweigh the disadvantages. The analysis does not entail that the defendant’s tort » caused « the plaintiff to spend money on maintaining a reserve bus: that expenditure was simply used as the best approximation of the loss the plaintiffs suffered by reason of the damaged bus being out of service.

J.Wrongful conception, wrongful life and wrongful birth

5 / 86 As in many other legal systems, English law has experienced great difficulties in recent decades in dealing with claims for wrongful conception, wrongful life and wrongful birth.

1.Wrongful conception

5 / 87 Wrongful conception indicates the situation where a woman has conceived a child through the tortious conduct of another person. The most common scenario is a negligently performed sterilisation operation, either on the woman herself or her partner. In such a case, the mother may recover damages for the ( pecuniary and non-pecuniary ) effects of the pregnancy and birth themselves, but not the economic loss constituted by the costs of rearing the » unwanted « child175. There has been some equivocation as to whether the economic loss is pure or consequential, not just as regards the father but also the mother, but it seems clear that this does not matter in this context176.

5 / 88 To the damages recoverable by the mother in respect of the pregnancy and birth is to be added a conventional award in recognition of the injury to the parents’ autonomy. » Conventional « here signifies that the award is independent of the actual effects on the parents of having an » unwanted « child, and is of fixed amount. It seems to be awarded in respect of a presumed non-pecuniary loss. The award may be regarded as compensatory177. The figure awarded ( £ 15,000178 ) may be compared with the smaller conventional sum of £ 11,800 that is awarded by statute to the parents of a child who is killed by another person’s tort179. It seems that

175McFarlane v. Tayside Health Board [ 2000 ] 2 AC 59; Rees v. Darlington Memorial Hospital NHS Trust

[ 2003 ] UKHL 52, [ 2004 ] 1 AC 309.

176In McFarlane, Lord Steyn ( at [ 79 ] ) and Lord Hope ( at [ 96 ] ) considered the loss was purely economic, and Lord Hope repeated this opinion in Rees ( at [ 52 ] ), but Lord Steyn ( McFarlane, at [ 79 ] ) and Lord Millett ( McFarlane, at [ 109 ] ) said that it was irrelevant whether the economic loss was pure or consequential.

177In the leading case, this was expressly the view of Lord Millett, but Lord Bingham – for reasons which are hard to fathom – stated it was not compensatory.

178Following Rees v. Darlington Memorial Hospital NHS Trust [ 2003 ] UKHL 52, [ 2004 ] 1 AC 309.

179Fatal Accidents Act 1976, sec 1A. The award is made only if the child was under the age of 18 at the date of his death.

the award is for the injury suffered by both parents, and it may be anticipated that difficult questions will arise as to who gets the money, and how much, if the parents have separated at the time of the birth, or have never been » together « at all.

The above principles apply not just in the case of a healthy child with healthy 5 / 89 parents, but also where a healthy child is born to a disabled parent. It is yet to be

finally resolved whether the same applies where it is the child’s disability that materially increases the costs of care. The Court of Appeal has allowed recovery of the » additional « caring costs ( pecuniary damage ) in such a case180, but the correctness of that decision subsequently divided the House of Lords ( obiter )181 and to that extent remains open.

180Parkinson v. St James and Seacroft University Hospital NHS Trust [ 2001 ] EWCA Civ 530, [ 2002 ] QB 266. See H. Koziol / B.C. Steininger ( eds ), European Tort Law 2001 ( 2002 ) 131, nos 47–53.

181In Rees v. Darlington Memorial Hospital NHS Trust [ 2003 ] UKHL 52, [ 2004 ] 1 AC 309 the House of Lords was evenly divided between those who thought it was right to allow recovery of the additional child-rearing costs attributable to the child’s disability, and those who thought it was wrong, with one Law Lord declining to express an opinion. See K. Oliphant, England and Wales, in: H. Koziol / B.C. Steininger ( eds ), European Tort Law 2003 ( 2004 ) 113, no 39 ff.

182McKay v. Essex Area Health Authority [ 1982 ] QB 1166.

183[ 1982 ] QB 1166, 1180 per Stephenson LJ ( who conceded that the doctor might owe the mother a duty to allow her the opportunity to terminate the pregnancy ). See also [ 1982 ] QB 1166, 1188 per Ackner LJ ( sanctity of life ).

184[ 1982 ] QB 1166, 1181 f per Stephenson LJ, 1189 per Ackner LJ, and 1192 f per Griffiths LJ.

185[ 1982 ] QB 1166, 1193 per Griffiths LJ. Cf 1180 f per Stephenson LJ and 1188 per Ackner LJ.

5 / 92 In the English legal literature, wrongful birth actions are seen to be based on the mother being deprived of the opportunity to have an abortion by the defendant’s negligence ( eg in failing to detect an abnormality in the foetus ). They therefore raise policy considerations which overlap to a very great extent with those in the wrongful life scenario. Nevertheless, as in wrongful conception cases, the courts allow the recovery of damages for losses, including pain and suffering, arising directly out of the birth, plus a conventional sum for injury to reproductive autonomy, though not the ordinary costs of child-rearing193. This approach has been

186Law Commission, Report on Injuries to Unborn Children ( Law Com No 60, 1974 ) § 89; Royal Commission on Civil Liability and Compensation for Personal Injury, Report Cmnd 7054, vol 1, § 1485 f. In McKay v. Essex Area Health Authority [ 1982 ] QB 1166, 1192 Griffiths LJ expressed scepticism about this argument, observing that the final decision always rested with the pregnant woman, and the doctor’s duty was only to advise of the pros and cons.

187See eg T. Weir, Wrongful Life – Nipped in the Bud [ 1982 ] CLJ 225; A. Grubb, » Wrongful Life « and Pre-Natal Injuries ( 1993 ) 1 Medical Law Review ( Med L Rev ) 261, 263–265; A. Grubb, Problems of Medical Law, in: S. Deakin / A. Johnston / B. Markesinis, Markesinis and Deakin’s Tort Law 5 ( 2003 ) 308 f. Cf T. Weir, Tort Law ( 2002 ) 186 ( affirming that the decision was right ).

188H. Teff, The Action for » Wrongful Life « in England and the United States ( 1985 ) 34 International and Comparative Law Quarterly ( ICLQ ) 423; A. Morris / S. Saintier, To Be or Not to Be: Is That The Question ? Wrongful Life and Misconceptions ( 2003 ) 11 Med L Rev 167.

189Sec 4 ( 5 ).

190[ 1982 ] QB 1166, 1178 per Stephenson LJ, 1187 per Ackner LJ, and 1192 per Griffiths LJ.

191Grubb ( 1993 ) 1 Med L Rev 264 f.

192Congenital Disabilities ( Civil Liability ) Act 1976, sec 1A, introduced by the Human Fertilisation and Embryology Act 1990, sec 44.

193Groom v. Selby [ 2001 ] EWCA Civ 1522, [ 2002 ] Personal Injuries and Quantum Reports ( PIQR ) P18. Assuming the approach in wrongful conception cases is followed here too, compensation would seem to be available for additional costs attributable to the child’s disability: see Par-

subjected to a certain amount of criticism194, and has not been followed where the hypothetical abortion would have been illegal: in such a case, public policy precludes the award of damages195.

In principle, actions for wrongful birth may be distinguished from actions for 5 / 93 » wrongful conception «, where the defendant’s negligence causes the pregnancy of

a woman who does not wish to conceive, but the distinction is not watertight because, in a wrongful conception action, it may be part of the claimant’s case that the defendant’s negligence meant that she did not remain as alert to the risk of pregnancy as she might otherwise have been, and deprived her of the opportunity ( which she would have taken ) to have an abortion196.

II.  Causation

known » but for « test, which requires that the defendant’s conduct be a necessary condition of the claimant’s harm. Legal causation is the term applied to a number of further rules that limit causal responsibility to a sub-set of » factual « causes, such limits being seen as necessary to preempt the possibility of » Adam-and-Eve causation «197. These include principles of novus actus interveniens and remoteness of damage ( » proximate cause « ). Some writers dispute whether principles of legal causation are principles of causation at all rather than policy-based limitations

kinson v. St James and Seacroft University Hospital NHS Trust [ 2001 ] EWCA Civ 530, [ 2002 ] QB 266 ( wrongful conception ).

194For example by P. Glazebrook, Unseemliness Compounded by Injustice [ 1992 ] CLJ 226.

195Rance v. Mid-Downs Health Authority [ 1991 ] 1 QB 587.

196See eg Thake v. Maurice [ 1986 ] QB 644, 680-1.

197G. Williams, Causation in the Law [ 1961 ] CLJ 62, 64.

B. Cause as a necessary condition

5 / 96 Factual causation is normally addressed through the » but for « test, which has

means that » factual « causation actually requires us to look at what did not in fact occur203. It needs to be considered not just how the defendant should have acted but also of how the claimant would have reacted to the defendant’s hypothetical conduct – for example, in a medical case, whether the claimant would have undergone the treatment provided if properly informed of the risks204, or how he or she would have responded to proper medical treatment if it had been provided205. Similarly, where the defendant employer wrongfully failed to provide a safety harness to a worker who fell to his death from scaffolding, it had to be shown that he would have worn the harness if it had been provided206.

198See eg J. Stapleton, Legal Cause: Cause-in-Fact and the Scope of Liability for Consequences ( 2001 ) 54 Vanderbilt Law Review 941.

199Cork v. Kirby Maclean Ltd. [ 1952 ] 2 All ER 402, 407 per Denning LJ.

200Smith New Court Securities Ltd. v. Citibank NA [ 1997 ] AC 254, 285 per Lord Steyn; H.L.A. Hart / T. Honoré, Causation in the Law 2 ( 1985 ) 113. See also Fairchild v. Glenhaven Funeral Services Ltd.

[ 2003 ] 1 AC 32, 69 per Lord Nicholls ( » over-exclusionary « ).

201See nos 5 / 100 f, 102 ff and 106 ff below.

202Hart / Honoré, Causation in the Law2; R. Wright, Causation in Tort Law ( 1985 ) 73 Cal L Rev 1735, developing the » NESS « ( necessary element of a sufficient set ) test.

203W.P. Keeton ( ed ), Prosser and Keaton on Torts 5 ( 1984 ) 265.

204Chatterton v. Gerson [ 1981 ] QB 432. But cf the interesting case of Chester v. Afshar [ 2004 ] UKHL 41, [ 2005 ] 1 AC 134 where damages were awarded even though it was accepted that the claimant would have undergone the proposed treatment at some future date, even if not immediately.

205Barnett v. Chelsea and Kensington Hospital Management [ 1969 ] 1 QB 428.

206McWilliams v. Sir William Arrol & Co. [ 1962 ] 1 WLR 295. ( The deceased’s widow failed to discharge this burden on the facts.)

C.Omissions as cause

It is a mistake to think that only positive acts ( » making things happen « ) can oper- 5 / 99 ate as causes, and hence give rise to liability, and that » doing nothing « can bring nothing about. In fact, the terms » act « and » omission « should properly be regarded as nothing more than labels that can be applied interchangeably to every instance of human conduct; the distinction does not reflect any deep, philosophi-

cal subdivision of human conduct into two essentially different types. The point is well-made by Hart and Honoré: » Human conduct can be described alternatively in terms of acts or omissions. ›A medical man who diagnoses a case of measles as a case of scarlet fever may be said to have omitted to make a correct diagnosis; he may equally well be said to have made an incorrect diagnosis‹ ( Harnett v. Bond [ 1924 ] 2 KB 517, 541 per Bankes LJ ). Sometimes it is more appropriate to describe the conduct as an omission; if there is a legal duty to do an act, and the subject has not done it, the legally relevant description will be in terms of an omission to perform the act in question. But the description of conduct as an omission may not imply any bodily movements by the person whose conduct is in question: eg if the description is: ›The defendant failed to inspect the electrical wiring.‹ Consequently those courts and writers who are impressed by ›setting in motion‹ as a prime instance of causation, and who further conclude that we can only set things in motion by ourselves making movements, find it difficult to understand how an omission to act can negative causal connection. It is now thought, at least in England, that there is no special difficulty about omissions … In truth, no rational distinction can be drawn between the causal status of acts and omissions. «207

D.Cumulative causation

In cases of toxic exposure attributable to emissions from both D1 and D2, and in 5 / 100 analogous cases, it is immaterial that V’s injury would have occurred even if the exposure from either D1 or D2 was taken away. That is, it is not necessary to prove

that either D1 or D2 was a but-for cause. It is necessary to prove only that D1 and / or D2 made a material contribution to the exposure, from which is inferred a material contribution to V’s injury208. Thus, where V contracts pneumoconiosis as a result of the gradual build-up in his lungs of silicone dust to which he is exposed in separate periods of employment with D1 and D2, and the exposure from D1 would

207Hart / Honoré, Causation in the Law 2 138 f.

208Bonnington Castings Ltd. v. Wardlaw [ 1956 ] AC 613; Bailey v. Ministry of Defence [ 2008 ] EWCA Civ 883, [ 2009 ] 1 WLR 1052.

probably have caused the pneumoconiosis without the contribution from D2, D2 is not a but-for cause of the condition. Nevertheless, he is liable for it on the basis that his more than trivial contribution to the cumulative exposure constitutes a material contribution to the injury209. The same applies where V suffers serious injuries in a road traffic accident attributable to the negligence of D1, leaving her in a weakened state which is subsequently exacerbated by her negligent treatment in D2’s hospital; because of her weakened state, V aspirates her own vomit, which results in hypoxic brain damage. Both D1 and D2 made a material contribution to

this injury, even if it could not be proven that D2 made any difference to the outcome210.

5 / 101 The quantum of liability in such cases depends on whether the injury suffered by V is divisible or indivisible. If the injury is divisible ( as where it is a progressive condition that develops in proportion to V’s toxic exposure ), each D is liable only to the extent of his proportional contribution to the total exposure211. If the injury

is indivisible, each defendant is jointly and severally liable in the full amount of V’s loss212.

E.Overlapping causation

5 / 102 D1 and D2 injure V independently and consecutively, and the effects of the two injuries overlap. Consequently, neither D1 nor D2 satisfies the but-for test in respect of the area of overlap ( » the overlap injury « ). Whichever of them is hypothetically imagined away, the other would have caused the overlap injury anyway. Here English law’s approach is captured in a set of three principles, all of which attach significance to the order in which the injuries occur. To provide a complete picture, it is necessary to consider not just multiple tortfeasors but also the case of overlap between tortious and non-tortious injury.

5 / 103 First, where the effects of a tortious injury are overlapped by the effects of some later non-tortious injury, the tortfeasor’s liability in damages is extinguished from the time the non-tortious injury would have had the same effect. The award of damages should not place V in a better position than he would have been in had the tort not occurred213. Consider the following illustration. V injures his back in an accident at work for which his employer, D, is responsible. He is left fit for only light work, and so suffers a reduction in earnings. Subsequently, V suffers spinal

209A variation on the facts of Bonnington Castings Ltd. v. Wardlaw [ 1956 ] AC 613.

210A variation on the facts of Bailey v. Ministry of Defence [ 2008 ] EWCA Civ 883, [ 2009 ] 1 WLR 1052.

211See eg Holtby v. Brigham & Cowan ( Hull ) Ltd. [ 2000 ] 3 All ER 421 ( asbestosis; damages assessed on a » time-exposure « basis ).

212Bailey v. Ministry of Defence, above.

213Jobling v. Associated Dairies [ 1982 ] AC 794.

F. Alternative causation

Where either D1 or D2 injured V, but it is not certain which of them was in fact 5 / 106 causally responsible, V must normally prove that the defendant he chooses to sue

was more likely than not the cause of his injury. The classic illustration in English law is a case where V drinks tea from a urn at his workplace which, unknownst to him, has been poisoned with arsenic by persons unknown. Experiencing persis-

tent vomiting, V goes to the casualty department of D’s hospital. The duty doctor refuses to see him and V dies from arsenical poisoning. The doctor’s refusal to see V is not a cause in fact of his death as there was little or no chance that effective treatment could have been given in time anyway, so D is not liable220.

5 / 107 Courts in various common law jurisdictions have over time admitted a number of exceptions to the but-for test in various cases of alternative causation. Liability has thus been imposed in the hunters’ scenario in Canada221 and in cases of mesothelioma from asbestos exposure in England222. Where V sustains mesothelioma through occupational exposure to asbestos dust during separate periods of employment with D1 and D2, and it is unknown whether mesothelioma is triggered by exposure to asbestos on a single occasion or by cumulative exposure over a period of time, D1 and D2 are both liable to compensate V in proportion to their contribution to the total risk. This liability for » material contribution to risk « was first explicitly recognised in Fairchild v. Glenhaven Funeral Services Ltd. in 2002. It is not limited to cases of mesothelioma or to cases where all the possible causes of the injury are tortious ( the » indeterminate defendant « scenario ) but can apply even when the possible causes include non-tortious factors, including V’s own conduct223. But the courts have repeatedly emphasised that the liability must be regarded as exceptional224. The limits of the exception are, however, unclear and little attempt has been made to date to explain how it fits with English law’s consistent rejection of claims for loss of chance225, even though the chance of avoiding injury is simply the obverse of the risk of suffering injury226.

5 / 108 As regards the quantum of liability, the traditional rule of joint and several liability is applied in the hunters’ cases, but proportional liability has been the preferred judicial approach in the mesothelioma scenario227. In the leading, English

220Barnett v. Chelsea and Kensington Hospital Management [ 1969 ] 1 QB 428. On the facts, the identity of D1 was unknown and the proceedings were only against D2.

221Cook v. Lewis [ 1951 ] Supreme Court Reports ( SCR ) 830 ( Supreme Court of Canada ); see also Summers v. Tice ( 1948 ) 33 California Reports, Second Series ( Cal 2d ) 80, 199 Pacific Reporter ( P ) 2d 1 ( California Supreme Court ).

222Fairchild v. Glenhaven Funeral Services Ltd. [ 2002 ] UKHL 22, [ 2003 ] 1 AC 32; Barker v. Corus ( UK ) plc [ 2006 ] UKHL 20, [ 2006 ] 2 AC 572. The House of Lords explicitly followed the approach of the California Supreme Court in Rutherford v. Owens-Illinois Inc. ( 1997 ) 67 California Reporter ( Cal Rptr ) 2d 16, though that was a claim against a manufacturer of asbestos rather than an employer.

223See McGhee v. National Coal Board [ 1973 ] 1 WLR 1 ( non-tortious workplace exposure to noxious brick dust ) and Barker v. Corus, above ( asbestos exposure in periods of self-employment ), where Lord Hoffmann at [ 13 ] described McGhee as a case of Fairchild liability » avant la lettre «.

224See eg Barker v. Corus, at [ 1 ] per Lord Hoffman, and [ 57 ] per Lord Scott.

225Hotson v. East Berkshire Area Health Authority [ 1987 ] AC 750; Gregg v. Scott [ 2005 ] UKHL 2, [ 2005 ] 2 AC 176.

226G. O. Robinson, Probabilistic Causation and Compensation for Tortious Risk ( 1985 ) 14 Journal of Legal Studies ( J Legal Stud ) 779, 793.

227Rutherford v. Owens-Illinois Inc. ( 1997 ) 67 Cal Rptr 2d 16 ( California Supreme Court ); Barker v. Corus ( House of Lords ).

with contingency. Both systems also have recourse, in some such cases, to proportional liability. But there are some significant differences. In particular, the Austrian approach to alternative causation rests on a general theory ( potential causation )232, while the English approach is to make a largely un-theorised exception to ordinary rules. Conversely, adoption of proportional liability in England and Wales is in one way more comprehensive, because it is applied there to the indeterminate defendant scenario as well as to cases of alternative causation where one or more of the possible causes is non-tortious. A further difference is in how the liability is conceived: under Austrian law, as a weakening of the ordinary requirement of conditio sine qua non, and under English law as a redefinition of the damage in terms of the risk rather than the outcome. Of crucial importance to understanding the difficulty that English law has had in formulating a principled ap-

228Barker v. Corus, at [ 35 ] ff per Lord Hoffmann. Lord Scott and Lord Walker expressly agreed with Lord Hoffmann’s analysis. Cf Baroness Hale at [ 120 ], expressly rejecting this analysis.

229Barker v. Corus, at [ 43 ] per Lord Hoffmann.

230Sienkiewicz v. Greif ( UK ) Ltd. [ 2011 ] UKSC 10, where 15 % of the total exposure was tortious and 85 % environmental.

231K. Oliphant, Alternative Causation: A Comparative Analysis of Austrian and English Law, in: Festschrift für Helmut Koziol ( 2010 ) 810 ff.

232Basic Questions I, nos 1 / 27, 5 / 78 ff.

G. Damages for loss of chance234

5 / 112 To understand English law’s approach to the award of damages for loss of chance, an initial distinction must be drawn between what must be proven to establish a cause of action, and the quantification of damages in respect of a proven cause of action. At the quantification stage, percentage chance assessments are routinely and correctly made by the courts. So where a 19-year-old student suffered brain damage in a road accident and was awarded damages for loss of earnings, the Court of Appeal proceeded on the assumption that she had a 50 : 50 chance of qualifying and obtaining employment in her preferred career ( drama teaching ) and awarded her damages for that loss of chance235. However, such cases are not cases of » loss of chance proper « because they deal with the quantification of damages, rather than whether loss of chance is itself to be treated as an actionable injury236.

5 / 113 In general, English tort law sets itself against the award of damages for loss of chance in this true sense. Reliance upon the loss of chance theory is seen as an impermissible way of getting around normal limitations on the scope of tortious liability and generally applicable requirements of proof. To establish a cause of action, it is normally necessary to prove each of its elements on the balance of prob-

233 Oliphant in: Koziol-FS 811 f.

234 K. Oliphant, Loss of Chance in English Law ( 2008 ) 16 European Review of Private Law ( ERPL ) 1061, especially at 1068 ff. For other analyses, see A. Burrows, Uncertainty: Damages for Loss of a Chance [ 2008 ] Journal of Personal Injury Litigation ( JPIL ) 31; H. McGregor, Loss of chance: where has it come from and where is it going ? ( 2008 ) 24 Professional Negligence ( PN ) 2; J. Stapleton, Cause in fact and the scope of liability for consequences ( 2003 ) 119 Law Quarterly Review ( LQR ) 388, 389–411.

235 Doyle v. Wallace [ 1998 ] PIQR Q146. See also Langford v. Hebran [ 2001 ] EWCA Civ 361, [ 2001 ] PIQR Q13 ( loss of chance of career in professional kick-boxing ).

236 See further McGregor ( 2008 ) 24 PN 2, 5 f, but note the criticism of the cause of action / quantification distinction by Burrows [ 2008 ] JPIL 31, 42 f.

In fact, the possibility of such an exception was acknowledged by Lord Bridge in Hotson, and divided the House of Lords in Gregg v. Scott, with ( it seems ) two Law Lords in favour, two against, and one reserving his opinion. In what type of case might a loss of chance argument succeed, however, if it was rejected on the actual facts of both the leading cases ? To answer this question, it is necessary to identify three distinct situations. In the first, ( a ), the claimant’s condition has resolved at the time of the defendant’s negligence, but it is uncertain whether or not he had at that stage any chance of avoiding the injury. This was the situation in Hotson. The

237This was in effect what the House of Lords decided in the Hotson case.

238See eg Gregg v. Scott [ 2005 ] 2 AC 176 at [ 220 ] per Baroness Hale. Cf [ 83 ] per Lord Hoffmann ( in financial loss of chance cases, » the chance can itself plausibly be characterised as an item of property, like a lottery ticket « ). See further B. Coote, Chance and the Burden of Proof in Contract and Tort ( 1988 ) 62 ALJ 761.