No CrossRef data available.
Article contents
Risk and the damage requirement in negligence liability
Published online by Cambridge University Press: 02 January 2018
Abstract
Applying the Fairchild exception in Barker, Lord Hoffmann sought to justify apportionment of liability by reformulating the gist of the negligence action as the risk of mesothelioma rather than the mesothelioma itself. This paper examines the notion of risk to show that it cannot coherently be recognised as damage. By distinguishing risk from the related concept of probability, it is apparent that risk is a forward-looking concept that is incompatible with the role in which it is cast in the backward-looking causation inquiry when mesothelioma is an essential ingredient of liability. This paper goes on to consider whether ‘pure’ risk could form the gist of a negligence action and suggests that it lacks the moral significance to constitute damage. Furthermore, the damage requirement would be subsumed into the breach inquiry, effectively being lost as a distinct element of the negligence inquiry. This is incompatible with the traditional loss-based model of negligence.
- Type
- Research Article
- Information
- Copyright
- Copyright © Society of Legal Scholars 2015
Footnotes
*
I am indebted to Claire McIvor, Donal Nolan, Jose Miola and the anonymous reviewers for their comments on this paper. An earlier version of this paper was presented at the Obligations VI Conference 2012 and I am grateful to participants for their feedback. I am also grateful to the University of Leicester for allowing me a period of study leave during which I carried out the research for this paper.
References
1. Fairchild v Glenhaven Funeral Services (t/a GH Dovener & Son) [2002] UKHL 22, [2003] 1 AC 32.
2. Barker v Corus (UK) plc [2006] UKHL 20; [2006] 2 AC 572 (HL).
3. Compensation Act 2006, s 3.
4. Barker, above 3, at [43] (Lord Hoffmann). Note, however, that in his dissent Lord Rodger stated that ‘the desirability of the courts, rather than Parliament, throwing this lifeline to wrongdoers and their insurers at the expense of claimants is not obvious to me’ [90].
5. Ibid, at [40]–[42] (Lord Hoffman), [109] (Lord Walker), [127] (Baroness Hale).
6. Ibid, at [35].
7. Durham v BAI (Employers' Liability Insurance ‘Trigger’ Litigation) [2012] UKSC 14, [2012] 1 WLR 867.
8. Rothwell v Chemical and Insulating Co Ltd and another [2007] UKHL 39, [2007] 3 WLR 876.
9. A distinction is drawn between damage that is said to be ‘divisible’ or ‘indivisible’. If the harm is divisible, then this means that it is dose-related, so each exposure to the relevant harmful agent increases the severity of the harm. This means that each exposure causes a portion of the total harm. See eg Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421 (CA). In contrast, indivisible harm is ‘all-or-nothing’; the severity of the disease is unaffected by the dose of the harmful agent. This means that each causal factor is a cause of the whole loss (although, as between defendants in an action for contribution, we may then divide up responsibility based on blameworthiness, but vis-à-vis the victim each defendant is a cause of the whole of his indivisible disease).
10. The single rogue fibre theory has been largely discredited (see Amaca Pty Ltd v Booth [2011] HCA 53 [19]), but significant scientific uncertainty remains. For a more recent account of the understanding of mesothelioma, see Lord Phillips' speech in Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; [2011] 2 WLR 523 at [19] and annex (providing detailed information obtained from the judgment of Rix LJ in Durham v BAI (Employers' Liability Insurance ‘Trigger’ Litigation) [2010] EWCA Civ 1096, [2011] 1 All ER 605).
11. McGhee v National Coal Board [1973] 1 WLR 1 (HL).
12. Barker, above 3, at [120].
13. Ibid, at [127] (Baroness Hale).
14. Ibid, at [126] (Baroness Hale).
15. Lords Scott and Walker concurred with his decision and the reasons for it, and provided their own reasons in addition.
16. Barker, above 3, at [35] (Lord Hoffmann). Lord Hoffmann has acknowledged extra-judicially that he sought to create a new cause of action in respect of risk, explaining ‘My own proposal to treat Fairchild as creating a special new cause of action, that is, creating a risk of injury which has subsequently eventuated, could not be found in any opinion in Fairchild, except possibly my own, and certainly not in McGhee. I was rewriting history’; Hoffmann, Lord ‘ Fairchild and after’ in Burrows, A, Johnston, D and Zimmerman, R (eds) Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford: Oxford University Press, 2013) p 67.Google Scholar
17. Bonnington Castings v Wardlaw [1956] AC 613 (HL).
18. Barker, above 3, at [35] (Lord Hoffmann).
19. A ‘divisible’ damage is one which is dose-related, so that each exposure to the harmful agent causes the damage to be more severe. This means that each exposure is a cause of a distinct portion of the overall damage suffered, so a defendant's liability is limited to the portion of the total damage that he caused. See Hogg, M ‘Causation and apportionment of damages in cases of divisible injury’ (2008) 12 Edin L R 99 at 101.Google Scholar
20. Barker v Saint Gobain Pipelines plc [2004] EWCA Civ 54, [2005] 3 All ER 661.
21. Green, S ‘Winner takes all’ (2004) 120 Law Q Rev 566 at 570.Google Scholar
22. Prevailing academic opinion is that corrective justice corresponds most closely to the tort of negligence: see eg Weinrib, E The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995)Google Scholar; Weinrib, E ‘Corrective justice’ (1992) 77 Iowa L Rev 404 Google Scholar; Beever, A Rediscovering the Law of Negligence (Oxford: Hart Publishing, 2009)Google Scholar; Englard, I ‘The system builders: a critical appraisal of modern American tort theory’ (1980) J Legal Stud 27 CrossRefGoogle Scholar; Perry, S ‘The moral foundations of tort law’ 77 Iowa L Rev 449 Google Scholar; Coleman, J ‘The practice of corrective justice’ in Owen, DG (ed) Philosophical Foundations of Tort Law (Oxford: Oxford University Press, 1995).Google Scholar
23. Barker, above 3, at [48] (Lord Hoffmann). Affirmed in Rothwell, above 9.
24. Beever, above 23, p 487. See also Nolan, D ‘Causation and the goals of tort law’ in Robertson, A and Tang, HW (eds) The Goals of Private Law (Oxford: Hart Publishing, 2009) p 178 Google Scholar; Khoury, L ‘Causation and risk in the highest courts of Canada, England and France’ (2008) 124 Law Q Rev 103 at 126.Google Scholar
25. Durham v BAI , above 8.
26. Ibid, at [65].
27. Ibid, at [82].
28. See eg ibid, at [73] (Lord Mance), [88] (Lord Clarke).
29. Ibid, at [116].
30. Ibid, at [130].
31. Scherpe, J ‘A new gist?’ (2006) 65 Camb L J 487 at 488.CrossRefGoogle Scholar
32. SR Perry ‘Risk, harm, and responsibility’ in Owen, above 23, p 322.
33. Steele, J Risks and Legal Theory (Oxford: Hart Publishing, 2004) p 7.Google Scholar
34. Ibid, p 7.
35. Ibid, p 19.
36. Ibid, p 20.
37. Ibid, p 9.
38. Weekes, R ‘Not seeing the wood for the trees – risk analysis as an alternative to factual causation in Fairchild ’ (2003) 12 Nott L J 18 at 27.Google Scholar
39. Beever, above 23, p 486.
40. Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229 (SC).
41. For the purposes of this example it is assumed that these figures are accurate, although McIvor notes that the judge calculated them himself from limited evidence and without the help of epidemiologist expert witnesses; C McIvor ‘Debunking some judicial myths about epidemiology and its relevance to UK tort law’ [2013] 21 Med L R 553 at 572.
42. (4.39/24) × 100 = 18.29.
43. Barker, above 23, at [35] (Lord Hoffmann).
44. Williams v University of Birmingham [2011] EWCA Civ 1242, [2012] PIQR P4.
45. (Belcher J) at first instance (unreported) cited in Williams (CA), above 45, at [64].
46. (Belcher J) at first instance (unreported) cited in Williams (CA), above 45, at [39]–[40], [73].
47. Sienkiewicz, above 41.
48. Williams, above 45, at [19].
49. Ibid, at [19].
50. Ibid, at [31] (Aikens LJ).
51. Ibid.
52. Sienkiewicz, above 41, at [111] (Lord Phillips).
53. See eg Stapleton, J ‘Lords a'leaping evidentiary gaps’ (2002) 10 Torts L J 276.Google Scholar
54. Reece, H ‘Losses of chances in the law’ (1996) 59 Mod L Rev 188 at 192.CrossRefGoogle Scholar She provides the following explanation from Laplace: ‘We ought then to regard the present state of the universe as the effect of its anterior state and as the cause of the one which is to follow. Given for one instant an intelligence which could comprehend all the forces by which nature is animated and the respective situation of the beings who compose it – an intelligence sufficiently vast to submit these data to analysis – it would embrace in the same formula the movements of the greatest bodies of the universe and those of the lightest atom; for it, nothing would be uncertain and the future, as the past, would be present to its eyes’; Laplace, P-S Philosophical Essay on Probabilities (Berlin: Springer-Verlag, 1819; English translation 1995) p 4.Google Scholar
55. See Nolan, above 25, p 178; Beever, above 23, p 486; Scherpe, above 32, at 488.
56. Scherpe, above 32, at 488.
57. Nolan, above 25, p 179.
58. Clearly asbestos exposure is also wrongful because it creates a risk of other asbestos-related illnesses too.
59. Stapleton, J ‘The gist of negligence, part 1: minimal actionable damage’ (1988) 104 Law Q Rev 213 at 213.Google Scholar
60. Amirthalingam, K ‘The changing face of the gist of negligence’ in Neyers, J, Chamberlain, E and Pitel, S (eds) Emerging Issues in Tort Law (Oxford: Hart Publishing, 2007) p 474.Google Scholar
61. Voyiakis, E ‘The great illusion: tort law and exposure to danger of physical harm’ (2009) 72 Mod L Rev 909 at 915.CrossRefGoogle Scholar
62. Ibid, at 917.
63. Finkelstein, C ‘Is risk a harm?’ (2003) 151 U Pa L Rev 963 at 971.CrossRefGoogle Scholar
64. Ibid, at 993.
65. Perry, above 33, p 331.
66. Steele, above 34, p 25.
67. Rothwell v Chemical and Insulating Co Ltd and another [2007] UKHL 39, [2007] 3 WLR 876.
68. Green, S ‘Risk exposure and negligence’ (2006) 122 Law Q Rev 386 at 388.Google Scholar
69. Turton, G ‘Defining damage in the House of Lords’ (2008) 71 Mod L Rev 987 at 1012–1014.CrossRefGoogle Scholar
70. [1963] AC 758 (HL).
71. Amirthalingam, above 61, p 475.
72. Stevens, R Torts and Rights (Oxford: Oxford University Press, 2007) p 44.CrossRefGoogle Scholar
73. See above 23, and below 75.
74. See further E Weinrib, above 23, at 403; Weinrib, E ‘Corrective justice in a nutshell’ (2002) 52 U Toronto L J 349 CrossRefGoogle Scholar; Wright, R ‘Substantive corrective justice’ (1992) 77 Iowa L Rev 625.Google Scholar
75. Note that ‘damage’ is not synonymous with ‘loss’, but the damage requirement in negligence addresses one particular aspect of the corrective justice notion of ‘wrongful loss’. The damage requirement allows courts to distinguish between types of loss that might be considered ‘wrongful’ if caused by negligence and those kinds of loss that we might be expected to tolerate so are not actionable (see Turton, above 70).
76. Fairchild, above 2, at [155] (Lord Rodger).
77. Howarth, D ‘Many duties of care – or a duty of care? Notes from the underground’ (2006) 26 Oxford J Legal Stud 449 at 461.CrossRefGoogle Scholar
78. Steele, above 34, p 116.
79. Williams, above 45.
80. (Belcher J) at first instance (unreported) cited in Williams (CA), above 45, at [39].
81. Williams (CA), above 45, at [40] (Aikens LJ).
82. Ibid, at [40].
83. Lord Hoffmann, above 17, p 68.