Cary ct Pellet onelyais ef Coen cet ae Legal Studies, Vol. 30 No. 2, June 2010, pp. 167-185 DOL: 10.1111).1748-121X.2010.00155. ‘Causation in negligence: what is a material contribution?’ SH Bailey" Professor of Public Law, University of Notingham This paper considers the principle that iis sufficient to establish causation in fact in tort to show that the defendant's act or omission made a material contribution tothe harm. It examines the leading case, Bonningion Castings v Wardlaw, and other authorities and argues thatthe principle involves an application of the bufor test and not an exception to it I exceptions to the but-for test are 1 be made, they should be clearly articulated and Justified, as for example, in Fairchild. A broad interpretation of ‘material contribution’ as establishing in some cases such an exception provides insufficient clarity and is certainly 10 be supported. INTRODUCTION One of the many ongoing problems of the law governing causation in the law of negligence is the uncertainty that surrounds the exact meaning of the familiar propo- sition that itis sufficient to enable a claimant to establish causation in fact for him or her to show that the defendant's breach of duty made a ‘material contribution’ to the claimant's damage.' In particular, itis unclear whether this concept, properly under stood, constitutes an application of the but-for test or an exception to it. It is the purpose of this paper to sec if light can be thrown on this uncertainty. Before we reach, the cases, itis helpful to note the significance of the point that any causation-in-fact, difficulties were, in the UK, formerly matters for the jury rather than the judge. 1, HISTORICAL CONTEXT. CAUSATION ISSUES: JURY OR JUDGE In considering the significance of early authorities on causation, itis necessary to have regard to the historical context. I isto be noted that nineteenth and early twentieth century books on the law of tort spent very litle time discussing causation issues ‘Take, for example, Shearman and Redfield’s Treatise on the Law of Negligence.? The relevant principles were stated briefly: * Versions of this paper were presented to members of The Ropewalk Chambers, ‘Nottingham, and at the Torts Section mecting at the Society of Legal Scholars Conference al Keele University in September 2006. I am grateful for comments by those present on these ‘occasions and by Horton Rogers and Stephen Todd and the anonymous reviewers. Responsibility forthe views expressed remains mine. 1. Bonningion Castings v Wardlaw (1956) AC 613 2. New York: Baker, Voorhis & Co; London; Stevens and Haynes, 3rd edn, 1874, This was ‘book on the common law of negligence, published in the USA’ and the UK, and citing authorises from both countries 3. At pp 9-10. In WE Gordon and WH Griffth Addison's Treatise on the Law of Torts (London: Stevens and Sons, Sth edn, 1906), there are discussions of remoteness of damage and {© 2010 The Auto. Joural Complain © 2010 The Soci of Lea Sol, Palse by Blackwell Publis, 5600 Guingon Road, Oxford ON 200, UK end 330 Mah Suet Male, MA 0188, USA,168 Legal Studies, Vol. 30 No. 2 “<9, Negligence is also not actionable, unless it isthe proximate cause of the injury complained of sI0, Negligence may, however, be the proximate cause of an injury of which it is not the sole or immediate cause. Ifthe defendant's negligence concurred with some other event (other than the plaintiff's fault) © produce the plaintiff's injury, ‘0 that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are closely connected with the injury in the order of events, the defendant is responsible, even though his negligent act was not the nearest cause in the order of time . . ‘This definition covers both what is termed, in English law, causation in fact and remoteness of damage. There is then a whole chapter on contributory negligence, ‘which at common law was a complete defence, subject to the last opportunity rule. ‘This naturally covers some causation matters. It is noted that to bar a claim, contribu- tory negligence must have ‘proximately contributed to produce the injury of which {the plaintiff] complains’* ‘A large number of decisions are cited, it being noted that ‘ “contributed” is the word used in most of the decisions’.* Finally, in the chapter on the measure of damages, there are a few paragraphs on the principle that a defendant is only liable for the proximate consequences of his act or default. ‘What can be concluded from these propositions, judged at that time, is that there ‘was not much law on causation, apart from an enormously complex body of case-law con the common law of contributory negligence. The law lay in these general prin- ciples, which were to be put to the jury for determination on the facts. To be liable (leaving aside issues that today would be regarded as relating to proximate cause or remoteness of damage),’ the defendant's act or omission had to cause the harm, and need not be the sole cause," provided it materially contributed to the harm. However, contributory negligence (pp 51-60; 772-778) but no separate discussion of causation infact; the bat-for test is mentioned as part of the later (p 772). IF Clerk and WHB Lindsell The Lav of Torts (Wyatt Paine, 3rd edn, 1904) pp 130-138, 468-484, includes at pp 468-471 cases that establish that “Plaintiff must show that defendant's negligence was the cause ofthe damage’, including Metropolitan Railway Co v Jackson (1877) 3 App Cas 198 (the House held thatthe defendant's negligence in allowing overcrowding ina railway carriage a one station was nota Cause of an accident where the plaintif's thumb was jammed in the door at a later station; ‘whether this wes an application ofthe but-for test (see Lord O' Hagen at 206) or a ruling on remoteness (see Lord Blackburn at 209-210) was unclear 4. At pp 30-31 5. Atp 30, fn 4. 6 At paras 595-596, 7. ‘The developments in legal analysis whereby a clear distinction came to be drawn between causation in fact ad causation in law are considered in HLA Hatt and A Honoré Causation it the Law (Oxford: Clarendon Press, 2nd ed, 1985) ch IV. 8. Except to counter a defence of contributory negligence at common law: see Wakelin » London and South Western Railway Co (1896) 1 QB 189, per Brett MR at 190. Standard illustrations of the but-for test are MWilliams v Sir William Arrol (1962) 1 WLR 295 (HL), Barnett v Kensington and Chelsea Hospital Management Commitiee (1969] 1 QB 428 and Robinson v The Post Office (1974) 1 WLR 1176 (CA). Where an injury could have been caused by either tortious Risk A or non-tortious Risk B. but-for causation is established in respect of Risk A if itis shown that itis more than doubled the risk that arises from Risk B: see the discussion in Sienkiewice v Greif (UK) Ltd (2009} EWCA Civ 1159 (nolding that a claimant that ‘ean bring a case within the Fairchild exception (see nn $5 and 56 below) is entitled to prove (© 2010 Te Auto Joel Campion ©2010 The Soi of Legal ScolaWhat is a material contribution? 169 for a contribution to be material, there was no hint of any suggestion that it need not satisfy the but-for test? Similarly, for an action to be barred by the plaintiff's con- ‘nibutory negligence, that negligence had to contribute to the harm, Here there was of ‘course no question of the plaintiff's conduct being the sole cause of the harm. To bar fan action as a defence (or, today, to reduce damages) the contributory negligence can only ever be a contribution to the outcome and not the sole effective cause. “These principles sccm reasonably straightforward in themselves. Their application to the facts will also commonly have been straightforward. But any cases of difficulty ‘would simply have been handed over forthe inscrutable verdict of the civil jury. The Abolition in practice ofthe use in England and Wales of juries in negligence cases has ‘meant that such an approach is not now available. Judges must give reasons for their decisions on factual as well as legal issues. It isnot likely to be good enough for the judge simply to recite the pertinent facts of the case under consideration and simply ‘assert the conclusion that this amounts (or does not amount) to a “material contribu- tion’. Itneeds to be recognised that a principle sufficient for the resolution of a case by ajury may not provide sufficient guidance where reasons are to be given. ‘One ofthe on-going eauses of difficulty in modern tort causation law has been the lack of a proper understanding and definition of the concept ofa ‘material contribu- tion’. Its the contention of this paper that, as a matter of principle, satisfying the normal but-for test of causation should almost invariably be an essential part of the ‘case t0 be established by a claimant in fort. To hold a defendant liable in tort where there is significant uncertainty about the causes ofthe harm requires a strong policy justification; 0 do so where it seems that the harm would probably have happened ‘anyway requires even more. Justification can readily be provided where the claimant ‘njured by a combination of causes, each of whichis tortious and each of which is, sufficient to bring about the whole harm. Justification has also been found in the decisions of the House of Lords in McGhee v NCB and Fairchild v Glenhaven Funeral Services Lid." in which, atleast in the context of industrial diseases con- tracted at work, it has been held sufficient for the claimant to establish that the employer's negligence or breach of statutory duty materially increased the risk of harm, However, any proposal for a particular exception, to make the postion easier forall claimants or for particular classes of claimant, requires the closest scrtiny In North America, dificult puzzles ofthis kind have been simply handed over 0 the jury to decide whether D's conduct was a ‘substantial factor’ in bringing about the harm {0 the claimant (for example in cases on multiple sufficient causes"). It does, causation by showing a material increase in risk and isnot required where quantification of the increase in risk can be made to establish causation by showing thatthe risk has been more than doubled). 9, Cf Glanville Williams's unqualified statement in 1951; "Ifa fact is not the scientific cause fof an event, it cannot be the proximate cause': Joint Torts and Contributory Negligence (London: Stevens & Sons Ltd, 1951) p 240, 10. ‘See Corey v Havener (1902) 182 Mass. 250 (concurrent sufficient causes); Baker » Willoughby [1970] AC 467 (successive sufficient causes); Kwait Airways Corp v Iragi Airways Co (Nos 4 and 5) [2002] UKHL 19, 2002] 2AC 883 per Lord Nicholls at paras (73] and [74]; fand see generally on multiple sufficient causes (termed by the authors ‘additional causes"), Hart land Honoré, above 0 7, pp 235-249, These cases will not be analysed further in this article U1, [1973]1 WLR 1. See Lord Hope of Craighead ‘James McGhiee~ a second Mrs Donoghue [2003) CLI 587. Lord Hope was junior counsel for the defenders. 12, (2002) UKHL 22, [2003] 1 AC 32. 13. See Anderson v Minneapoplis, St P & $ St M Ry Co (1920) 146 Minn 430, 179 NW 45, (2010 The Autor, Journal Compson © 2010 The Soi of Legl Scolar170 Legal Studies, Vol. 30 No. 2 however, seem that even in the USA this approach is coming into disrepute."* Such an cescape route is clearly not available in English law, and should not be. 2, BONNINGTON CASTINGS (a) The decision ‘The leading case on the concept of a ‘material contribution’ is the well-known decision in Bonnington Castings Lid v Wardlaw. Two points are of particular interest here. First, no authorities on the meaning of the concept were discussed or even cited by the Law Lords. Secondly, there were many cases decided before Bonningzon Castings that stated that a defendant is liable where he ‘causes or material contributes, to’ the plaintiff's harm. So what did Bonnington Castings decide? John Harkness Wardlaw, a steel dresser, contracted pneumoconiosis in the course of his employment inthe defender’ s workshop. He worked there for some 8 years. The disease was caused by exposure to silica dust for which there were three possible sources. Only two were considered likely to produce dangerous quantities of silica dust: (1) four swing grinders and (2) the pneumatic hammer at which he worked and from which he probably inhaled most of his silica dust. The grinders were fitted with dust extraction plant as required by regulations. No such equipment could be used for the hammer. The pursuer sued for negligence, based on (1) breach of the regulations in failing to keep the dust extraction plant free from obstruction; and (2) at common lay, and for breach of the Factories Act 1933, in filing to provide adequate ventilation or to provide respirators, ‘The Lord Ordinary'® found (1) that the failure to provide respirators was an effective cause of the pneumoconiosis; (2) that the ventilation was inadequate; and @) that the defenders were in breach of the regulations as regards maintaining the dust extraction equipment. He awarded £2000 damages. A reclaiming motion was taken to the First Division of the Court of Session." The defenders argued that there was no liability in respect of the ventilators and the ventilation and that the most probable cause of the disease was the dust from the hammer, and therefore the pursuer had failed to establish causation. The majority judges were Lord Carmont and Lord Russell. Lord Carmont held () that the defenders were negligent in failing to maintain the dust extraction equip- ‘ment for dust from the swing grinders; and (2) that, by way of an exception to the normal rule, the onus lay on the defenders to show that this addition to the danger from the silica dust could not have been a contributing cause of the pneumoconiosis. Indeed this dust ‘may well have contributed a quota of silica dust to the pursuer's lungs and so helped to produce the disease’."* Accordingly, the defenders were liable ‘without reaching the question whether there was negligence in failing to provide respirators or in the overall ventilation arrangements. Lord Russell agreed with the third judge, Lord Clyde, that fault in failing to provide respirators was not established; and that it was not shown thatthe general ventilation 14, See Restatement ofthe Law (Third) of Torts: Liability for Physical Harm (Proposed Final Draf. April 6, 2005); Stapleton ‘Legal cause: cause-infact and the scope of liability for consequences’ (2001) 54 Vanderbilt LR 941 15. [1956] AC 613. : 16. 1955 SC 320. 17. Ibid Lord Carmont at 342, (©2010 The Autor Jura Compiaon ©2010 Te Soy of Lega SeoasWhat is a material contribution? 171 ‘was inadequate, He agreed with Lord Carmont thatthe onus of proof concerning the dust from the swing grinders lay on the defenders, The core idea was that where there ‘was a breach of a statutory duty designed to prevent a particular outcome, and if the Dutcome occurs, the onus lies on the defendant to disprove a causal connection, and this idea was applied to the common law claim as well as the claim for breach of statutory duty ‘Lord President Clyde dissented in the overall outcome, holding that the onus of proof lay on the pursuer to establish that the dust from the swing grinders made a material contribution to the pneumoconiosis and that on the facts it was too slight quantity. On the evidence it eannot be said to be established that any material contribution to the atmosphere from dangerous dust emanated from the swing grinders...” TA further appeal was taken to the House of Lords, In argument® the defenders’ position was, frst that the onus of proof lay on the pursuer to establish that there was 2 breach of duty and that the breach caused the injury. One of the cases cited was Wakelin v London and South Western Railway Co," where Lord Watson's formulation ‘was that ‘the plaintiff must allege and prove, not merely that [the defendants] were negligent, but that their negligence caused or materially contributed to the injury’; "There was thus no place for any reverse onus. The whole weight of the evidence showed that the danger to the pursuer lay in the operation of the hammer; the dust extraction plant was not always out of commission. Accordingly, on the facts, the pursuer ‘had failed to connect causally his ailment with the defenders’ negligence’ ‘What then was the position if, contrary to this argument, the onus of proof could {all on the defenders? Counsel's argument here was: Only if a pursuer proves that he suffered injury, that at the time his employ- cers were in breach of a statutory duty owed to him, that the injury was the thing which the statute was designed to prevent and that there was no other possible source of the injury, has he discharged the onus falling on him’ Itis submitted that read in context this is an argument that ifa reverse onus is to arise the pursuer must show that the breach of statutory duty is the only possible cause. It ts not claimed that in all cases a pursuer must show thatthe defender’s act or omission jyas the sole cause, Such a proposition would be novel, obviously wrong and incon- sistent with Wakelin, on which counsel had already relied. “Thirdly, if the onus of proof did fall on the defenders, they had discharged it by showing thet on the balance of probabilities the disease was caused by dust from the hammers and not the swing grinders, The ‘proper inference’ was that the source of the disability was the hammer; it was ‘mere speculation to connect it wit the latter’, This seems to mean again that, on the evidence, the probable, if not the sole, souree of the hharm was the dust from the hammers. ‘Fourthly, there was what seems (0 be a further fall-back position, namely that the ‘onus was on the pursuer to show that more dust came from the swing grinders than the hammers: It is not entirely clear whether this was part of the defenders’ case as to 19, At 338. 20, See at 616-618, 21, (1886) 12 App Ces 41 at 7, 22, Soe counsel st 617 and 618: “The onus was on [the pursuer] to show that more dust came from the swing grinders ..On the facts the true eause of the disease was the dust from the hammer’ {© 2010 Te Autor. Journ Compton © 2010 The Seety of ep Scoles172. Legal Studies, Vol. 30 No. 2 the general onus of proof on a pursuer or only part of their ease as what (Contrary to their first argument) would be needed in this context for the law to recognise a reverse conus of proof. ‘The pursuer argued that the evidence sufficiently linked the defenders” fault with the pursuer's injury, and continued: “The inhalation of the dust was the cause of the disease. If {the defenders] were shown negligently to have contributed a part of the dust which was not negligible, [the pursuer’s} case was proved." No authorities were cited for this proposition and there was no suggestion that it was regarded as novel, The defenders did not absolve themselves from responsibility by saying that the greater part of the dust was contributed by an innocent source, the hammer: “The cause of the injury was not the emanation of the dust but its inhalation ‘The inhalation, the cause ofthe injury, is not to be confused with the causa sine {qua non. OF the dust inhaled the amount contributed by the swing grinders was not negligible or inconsiderable. It is not correct to put on the [pursuer] the onus of proving that more dust came from the swing grinders than from another source. ‘The result of the appellants” contentions would be that in order to succeed the respondent would have to eliminate all innocent sources. Counsel concluded by saying: ‘As to onus of proof, the [pursuer] bases his case on the law as stated in the Wakelin’s case,” Stimpson's case™ and Vyner’s case’.”” Vyner was the authority interpreted by the Court of Session majority as involving a reverse onus, The order of arguments suggests that the pursuer may have taken the defenders to be arguing that in all cases, the pursuer had to show that the defender's act or omission was the sole or major cause of the harm to the pursuer. That would indeed have been a startling and unorthodox position. However, itis submitted that, as, argued above, this was not really the position contended for by the defenders. ‘The House of Lords dismissed the appeal, while disapproving any suggestion that there was a reversal of the onus of proof. Lord Reid posed the key question as follows: “If his disease resulted from his having inhaled part of the noxious dust from the swing grinders which should have been intercepted and removed, then the appellants are liable to him in damages: but if it did not result from that, then they are not liable. ‘The applicable law was well established: the pursuer had to prove that the defender’ fault ‘caused or materially contributed to his injury, and there is ample authority for that proposition both in Scotland and in England’.” Furthermore, that rule applied in breach of statutory duty cases. ‘Counsel at 617. Ibid See above. ‘Stimpson v Standard T;lepkones and Cables Ltd {1940] 1 KB 342, Vyner » Waldenberg Brothers Ltd (1946] KB 50 AL6IS, ‘Av 620, BESRREB {© 2010 Te Aut Jounal Compiaon © 2010 The Society of Legal Scholars