A new category of law

The Law seemed to be uncertain in dealing with this matter. However, it is still rather widely accepted as, or perhaps, must have taken Sir Thomas Holland view that in dealing with causation, the matter of sense is overriding the matter of science. In addition, in the concern of whether justice has been delivered, Lord Rodger is of the stand where the claimant should not be forced by the law to prove the 'impossible', if the law ever had, the 'duty of care' and 'breach' will be a worthless one as it takes no weigh. Moreover, Lord Bingham also delivered his view where it is decided on the balance of fairness. The law stands on the claimant side as the defendant has already breached his duty. Again, notably, it has been emphasised in that case. It is an exceptional situation and should be used sparingly if any case appears to be an identical one.

Nonetheless, Barker has criticised Fairchild to be an illogical one since it allowed the defendant who is wealthier to be targeted and without any proving of 'strong' causation. The latter criticism has already been overcome with the suggestion of indemnity payment. Of course, with the enactment of Compensation Act 2006 also made Fairchild decision more logical and reasonable. With the effect of Compensation Act 2006, Section 3 of this Act exclusively deals with Mesothelioma case, and it has laid down the principle of apportionment. It has also been further criticised on the grounds it leapt the evidential gap which is the reason why it is labelled as illogical in the vision of justice. It breaks the wall, as per Baroness Hale of Richmond, where he frankly expressed that Fairchild has laid down a law where persons are made to be liable even they may be an innocent party.

From the surface, Barker v Corus has shown the effort of the judges is establishing a fairer precedent as it also put a fence on Fairchild where it deals only with nothing beyond mesothelioma. Having all loopholes revealed, The novel case, Sienkiewicz v Grief(UK) Ltd26 has also mentioned Fairchild principle is to be strictly confined, and it as well suggested it to be govern under new tort called " Tort of increasing risk in personal injury".


In the gist, it is opined that, the whole purpose of the law of tort is not anything least but also to endeavor on striking the balance of both parties when dealing with personal injury to ensure justice. As per Lord Devlin, whereby he states that, a duty of the English judge is to administer justice according to law. Hence, It is a worth thinking about whether Fairchild is at all serve lesser justice on the defendant but more prone to the claimant. It is simply on the grounds that, the burden to prove one has caused injury on the balance of probabilities, which means, chances of causing such as injury is exceeding 51%.

On that basis, it is gainsaid that, the test used by Fairchild and Barker didn't obey such guidelines and hence may not be an adequate judgment. Doubtless, one test which backed the principle is 'But For Test' used in Barnett's case. It is suggested that, perhaps the principle of causation will be less burdened to make 'Fairchild' and 'Barker' principle into a new category of law. Stringently speaking, the fact of the said case does not even fit in the law of negligence as there is a failure of proof on the balance of probabilities. As per academician T.Hill: "…Proof of causation should not be accepted on anything less than the balance of probabilities, as in common with all civil actions…".

Notwithstanding that Compensation Act 2006 may have helped in a way to compensating the parties still it is far from the aim to ensure justice. So, commentator29 is of the view to establish a new tort after the novel case of Sienkiewicz v Grief (UK) Ltd [2009] as The 'Tort of Increase Risk in Personal Injury' with the threshold that, only similar fact like Fairchild with obstacles to prove under medical evidence and multiple possible defendants. The establishment of Fairchild principle perhaps purely on a pragmatic purpose that time, and maybe it is the time for some reform to make it sensible and justice sounded.

So far, It appears that Lord Bingham is quite true as to in general scenario when dealing with personal injury cases, 'But For' Test is the finest test to be invoked simply because it put more weight on the standard of proof in the balance of probabilities. It may, however, sound sheepish as after all the assessment on which test dress the best in 'causation', the result don't seem to answer nor to give us a clearer impression on how it is better worked. Nonetheless, it is of the opinion that, law should reform the lawin accordance from time to time as the social needs differ since time immemorial until now. Hence, perhaps the idea of having a new tort is of a fruitful one. Even if it does not, maybe modifying causation is not the only route but to have a better test in 'remoteness'.


1. W V H Rogers, Winfield & Jolowicz, 'Tort', 17th Edition, published in 2006

2. Emily Finch and Stefan Fafinski, 'Tort Law', published in 2007

3. Hepple, Howarth & Matthews, ' Tort: Cases & Materials' , published in 2001

4. Chris Turner, Sue Hodge, 'Unlocking Torts', 3rd Edition, published in 2010

5. Kumaralingam Amirthalingam, 'Causation, risk and damage', Law Quarter Review 2010