⇒ Not only must there be a duty of care, which the defendant breached. But, the breach of the duty of care by the defendant must have actually caused the damage

⇒ This is the test that is used by the court in the determination of whether or not the defendant caused the damage to the claimant

⇒ The 'but for' test: ‘But for the defendant’s breach of duty would the harm have occurred?’

• See, for example, Barnett v Chelsea and Kensington Hospital Management Committee [1969]

⇒ When there are two distinct sufficient causes of the claimant’s harm or it is impossible to determine each of the defendants’ contribution then the defendants are ‘jointly and severally liable’

• So, in other words, all the defendants are liable for the whole damage e.g. when 2 fires are started and merge to burn out a building, then the perpetrator of each is responsible for the whole damage

⇒ Note: Civil Liability (Contribution) Act 1978

• A defendant who is liable to the claimant for a loss may recover equitable contribution from another person who is liable in respect of the same loss
• But this is not sufficient protection to the defendant where the other liable parties are insolvent or no longer exist. For example, in many asbestos cases, where many companies could be liable for negligent exposure (and therefore the defendant could technically recover equitable contribution from many people), the companies are often no longer in business so the defendant does not find it easy to get equitable contribution

⇒ Indeterminate Cause:

• This is where you have more than one defendant, but only one "operative" cause of the claimant's loss, and it unclear which defendant caused the loss. For example, if a group of people are out shooting and the claimant gets shot in the leg: you have one bullet but several people who could pottentially be responsible for the injury. You know it had to be one of them, but it is unclear which defendant did it.
• See, for example, Cook v Lewis [1951]; Summers v Tice (1948): in these cases the burden of proof was reversed, such that each defendant had to prove that they did not cause the injury to the claimant

⇒ Cumulative Cause:

• This is where there is more than one “operative cause” for the claimant's loss, with each defendant having an effect on the claimants loss which combined to produce the same damage
• See, for example, Fitzgerald v Lane [1989]

⇒ Sometimes, there are successive causes of injury that are more spaced out than those that occur in concurrent cases

• See the case of Performance Cars v Abraham [1962]
• In Baker v Willoughby [1970], it was said that the first defendant will be liable for the losses caused by the second defendant, if the second defendant's actions did not alter the situation the claimant finds himself in
• However, in Jobling v Associated Dairies [1982] it was said that the liability of the defendant ended when the second (natural) incident occurred

⇒ The decision in Jobling undermined but did not overrule Baker v Willoughby: it really comes down to whether or not there is an innocent or natural explanation

⇒ Thus, the test for successive causes is as follows:

• 1) If the successive event was tortious, the original tortfeasor is liable for the losses he caused as if the successive event never happened
• 2) If the successive event was natural, than the original tortfeasor will only be liable for the losses up to that event

⇒ There are three ways to prove causation:

• The "All or nothing" approach i.e. where it is more likely than not that the defendant caused the injury to the claimant, then the claimant can recover in full from the defendant
• This is applied in most cases: see, for example, Hotson v East Berkshire HA [1987], Gregg v Scott [2005], and Wilsher v Essex Area HA [1988]
• The “vindication of rights” approach
• See, for example, Chester v Afshar [2005]
• The “material increase in risk” approach
• See, for example, McGhee v National Coal Board [1972] → if the defendant made a material contribution to the claimant's injury, that could be proof that he/she caused the injury

⇒ In McGhee v National Coal Board [1972] there was only one wrongdoer: the guy who negligently exposed his workers to brick dust causing the claimant dermatitis. However, in Fairchild v Glenhaven [2002] there were several previously negligent employers as well as other uncertainties: see the case here

• Ultimately, in Fairchild, the principle in McGhee was reasserted: they held that the defendants materially increased the risk so were "jointly liable" because the did not know who caused the cancer

⇒ However, in Barker v Corus [2006], a similar case to Fairchild, the House of Lords came to a different decision:

1. Each defendant could be held liable for exposing the claimant to asbestos dust (as was the case in Fairchild, and
2. Each defendant could be held liable only for his/her relative contribution to the chance of the claimant contracting cancer i.e. proportional liability
• In other words, it was said that it is for the claimant to show the proportions of each defendant's liability i.e. the House of Lords took the view that employers who expose employees to asbestos should be treated as several, not joint, tortfeasors
• This was a really unpopular decision because it meant claimants (who were probably very ill) and/or family (who are bereaved) have to go about suing each defendant, essentially, individually

⇒ The effect of the Barker decision in relation to several tortfeasors was nullified by section 3 of the Compensation Act 2006 → in other words, this statutory provision made it clear that the claimant should be entitled to claim in full from a single defendant (whether or not he was the one exposing that claimant to the asbestos in breach of duty)

• So, the court went back to the Fairchild decision

⇒ Cases after Fairchild, Barker, and the Compensation Act 2006:

• Rothwell v Chemical Insulating [2007]
• Sienkiewicz v Greif (UK) Ltd [2011]
• Bailey v Ministry of Defence [2008]