Liability according to probabilities

Flip another side of the coin, it is worth pinpointing on another test, which then established, a landmark case that ought not to be left would be the modified test as in McGhee v National Coal Board Ltd17 with the spirit to rectify the problems in 'But For' Test. In that situation, the standard of proving has become lower from proving 'but for' to material increase of the risk. The fact appears to be, where there was an employee, the claimant, with the job description to clean out brick kilns.

The atmosphere and environment of the working location were hot and dusty. However, the claimant has provided no adequate washing facilities by the defendant, the National Coal Board. The claimant was found to be infected by dermatitis subsequently after some days. It is evidenced whereby the fact that, the claimant cycling home with brick dust adhering to his skin had gradually materially increased to the risk than he might suffer from dermatitis.

The House of Lord in this case, has set in favour of the claimant by held that, the defendant was not liable for injury that is resulted from the exposure to dust in the proceed of work, but it had merely materially increased the risk. There has been a suspicion view where, the reason of the court to lower the standard is plainly for a question of policy. In regards with that, Lord Wilberforce has bluntly expressed in the judgment that:

"If one asks which of the parties, the workman or the employers, should suffer from this inherent evidential difficulty, the answer as a matter of policy or justice should be that it is the creator of the risk who, ex hypothesi, must be taken to have foreseen the possibility of damage, who should bear its consequences." In contrary to the aforementioned standing decision, in Wilsher v Essex Area Health Authority which is also decided by the House of Lord, has taken a different view.

It is identified that, the claimant was born prematurely hence needed more oxygen to survive. Unfortunately, the junior doctor happened to be negligent and inserted a catherer into a vein rather than an artery. As a consequence, the baby (claimant) had received excessive oxygen, which eventually led to damage to the retina and consequential blindness. Apparently, the baby has suffered a great material physical injury.19 In the Court of Appeal of McGhee case, where Lord Browne Wilkinson being the minority view has delivered his dissenting view was later found preferred by Lord Bridge of Harwich in this case that:

"I do not consider that the present case falls within their [McGhee's majority decision] reasoning. A failure to take preventive measures against one out of five possible causes is o evidence as to which of those five caused the injury." The mentioned quotation is then used as a ratio in deciding Wisher's situation. As a result, causation was not established since none of the potential causes were more likely to have fulfilled the proof on the balance of probabilities. The insightful law lords who sat in that case have reached in common to distinguish where the line has been drawn as below : "… But I find this cases quoted an analogy which suggests the conclusion that, in the absence of proof that the culpable condition had, in the result, no effect, the employers should be liable for an injury…".

The same applied in Gregg v Scott21 which has refused to use Material Increasing of risk test in which the usual causation test must stand and the claimant cannot recover the damages. Precisely, one will not ignore an elephant in the living which has signified how important the latter came upon in the development of causation. Which, eventually also attract many attentions from academicians and legal actors as rebuttals have abundantly made, namely, the Fairchild v Glenhaven Funeral Services Ltd22. This may be said as another prevailing view for now, which paves the way of thousand of similar cases, which happened also to be a medical negligence case.

The fact simply, where Mr Fairchild, have to cut asbestos sheets for roofing on the factory carried out his work with different employers has inhaled dusts that causing him mesothelioma. In the recent House of Lord decision with the absence of strong medical evidence in which even a single fibre could be the solitary cause, nonetheless, it appears to be difficult in determining which factory should be blamed on that 'single' fibre. It was held that, one increased the risk and another contributed subsequently the court has found in favour of Mr. Fairchild and all defendants are to be liable. The judgment is criticised to be unfair as there is insufficient of proof, which will be discussed on the next chapter in consideration of 'fairness'.

The revolutionary case, took place in 2006, which is Barker v Corus24 is demonstrated to be a rectifying tool of the unsolved issue in Fairchild. The material fact is identical, that mesothelioma has been suffered and it eventually leads to death of the claimant – Mr. Barker. The claimant had been exposed to asbestos during three different periods and one of it was during his self-employment period. The trial judge in this case has relaxed and criticised Fairchild's case to grant damages with apportionment rate since Mr. Barker will be partly liable during his self-employed duration.

It is of imperative to invoke Mc Lachlin J in that judgement that, Tort law is about compensating those who are wrongfully injured. This judgement is no doubt but a policy triggered the decision. However, it is always a question on whether should it be made per incuriam as this decision has not been complying with the standard of proof under civil law. As per Lord Hoffman is his dissenting judgement: "The law should accept that position and attribute liability according to probabilities."