Another patchwork quilt

This article is no way normative. It side-steps the whys and the wherefores and is purely descriptive, indeed predictive. The prediction is that the Court of Appeal decision in Sienkiewicz ¹ is about to force the common law into a perplexing but familiar dilemma: between following the dictates of logic – which risks opening a Pandora's box of legal difficulties – and creating an artificial bifurcation of the law by distinguishing mesothelioma and ‘everything else’.

The prediction is based upon five propositions:

‘Increased risk’ is the same as the ‘loss of a chance’;

Barker ² created a ‘new tort’ for negligently increased risk in mesothelioma cases;

S.3 Compensation Act 2006 was enacted to overrule Barker – but only in the context of mesothelioma;

There exists a class of clinical negligence cases which are substantively identical to Barker, and to which the Barker rationale is equally applicable;

But S.3 will not operate to bar such claims.

So: either (a) the Courts will recognize point 4 above and there will thus be recovery of damages for a lost chance in non-mesothelioma cases; or (b) the Courts will have to draw an arbitrary line in the sand.

For the reasons set out in the ‘Pandora's box’ section below, neither of these is wholly satisfactory.

In the final section, I go on to consider the nature of the new tort and the use to which, if unfettered, it might be put, especially in the spheres of product liability, environmental and pre-conception torts.

Five propositions

‘Increased risk’ is the same as the ‘loss of a chance’

There is no meaningful distinction between ‘increased risk’ and ‘loss of a chance’. Both are expressions of probability and such distinction as there is appears to come from the implicature of the English language rather than formal logic.

The former relates to countenancing a negative event, the later to missing a positive event; but – to take an example in Langford v Hebran ³ – one could just as easily speak of ‘increasing the risk’ of not becoming a champion kickboxer as of losing the chance of the championship.

Indeed Lord Walker talks of them as ‘mirror images’, ⁴ while Lord Scott describes Gregg v Scott ⁵ – the leading case of loss of a chance in the medical setting – as a case which concerned ‘whether the increase in risk could constitute damage’. ⁶

The doyen of damages Harvey McGregor concurs calling Barker – an increase in risk case –as one in which the ‘damages awarded were effectively for loss of a chance’. ⁷

Barker created a new tort for negligently increased risk in mesothelioma cases

Barker followed hot on the heels of Fairchild. ⁸ It will be recalled that in Fairchild the Claimants were employees who had contracted mesothelioma from asbestos dust exposure. Each Claimant had undertaken work for a number of employers over the years, all of whom had acted in breach of duty. Contemporary science could not (and still cannot) date the onset of the disease, and thus causation could not be traced back to any particular period of employment. Given too the non-cumulative nature of mesothelioma (i.e. the disease was caused by a single employer) the court at first instance held that although all of the possible causes were tortious, the Claimants could not establish ‘but for’ causation against any one Defendant.

The Lords decided that the normal requirements on the Claimant to prove causation should be modified in such circumstances. Demonstrating a ‘material increase in risk’ against any one of the Defendants would suffice for joint and several liability.

Weary of potential extension and misapplication of the exception, the Lords were at pains to set out what it was that made Fairchild so unique. This has come to be known as the ‘Fairchild Exception’. Fusing together strands from Lord Bingham (Para 2), Lord Hoffman (Para 61) and Jane Stapleton's famous dissection, ⁹ the ‘prerequisites’ are:

A proven breach of duty and proven, eventuated damage;

That all potential causes are tortious;

That all potential causes are under the control of the Defendants;

The existence of only one causal agent (albeit that there may be many token instantiations of it – e.g. numerous identical or substantially similar asbestos fibres);

An inherent impossibility in proving causation owing not to evidential lacunas but to the imperfection of contemporary medical science;

Indivisibility of injury, i.e. not a Bailey-type case of cumulative causes.

In Barker, the eponymous Claimant's working life was three-fold; he worked first of all for a now-insolvent employer; then for the Defendant; and lastly on a self-employed basis. The Court of Appeal upheld the first instance decision that the Defendant was jointly and severally liable, subject to a reduction for contributory negligence reflecting the period of self-employment.

The issue before the Lords was this: looking at any one Defendant, why should it make a difference to the issue of liability if the competing causes are non-tortious? That is to say, why should one Defendant not be liable in tort for negligently increasing the risk just because the other possible aetiology is, say, ‘natural causes or human agency or … the Claimant himself’ rather than another companion in guilt? In formal logic the difference is, where D = Defendant and C = a non-tortious cause:

D1 v D2 v D3 v D4, compared to

D1 v C2 v C3 v C4

The House of Lords agreed that items (ii) and (iii) of our list should be eroded and the Fairchild principle extended to cover such a case – but the reasoning was a piece of intellectual dishonesty of which only the House of Lords is (was?) capable. Fairchild, it was held – far from a sui generis modification or ‘pragmatic solution’ as was once thought (including by those who judged it) – had as its ‘implicit’ rationale the fact that the damage was not the eventuated risk (i.e. the mesothelioma) but the increase in risk itself.

So far, so good – and so far, so uncontroversial.

But Sienkiewicz – a recent case which has received surprisingly little academic attention ¹⁰ – cast Barker in a new light.

Sienkiewicz concerned an FAA claim brought by the daughter of Enid Costello. Mrs Costello had worked for a manufacturer of steel drums, Greif, for some 18 years. Although office-based, her duties took her all over the factory and by the time of trial it was accepted that it was on these daily forays that Mrs Costello had inhaled the fatal asbestos fibres. The Defendants argued that the exposure was minimal and that the correct approach was as espoused in XYZ ¹¹ to the effect that the balance of probabilities test required an exposure which more-than-doubled the risk of contraction. The Claimant who failed here, they argued, could not avail themselves of the material increase in risk approach – it was an alternative, and not a substitute.

The Court rejected that argument holding that by enacting section 3 of the Compensation Act 2006 (which, as we shall see, overruled Barker's imposition of ‘aliquot contribution’ damages) Parliament intended recovery for those who could prove causation ‘by any available method’ and not just by the ‘but for’ approach.

But the case was also the origin of the interpretation that Barker not only extended the Fairchild boundaries but created a new, ‘hitherto unrecognized’ tort in the context of mesothelioma – that of negligently increasing the risk.

The features of the new tort were that:

It is distinct from ‘personal injury law’ which is concerned with ‘pure causation’;

It comprises negligently increasing the risk of personal injury;

Damages are apportioned ‘aliquot contribution’;

It applies only to mesothelioma cases.

This is a fascinating analysis. Even those who foresaw the far reaching corollaries of Barker did not go so far as suggesting it constituted a new cause of action. ¹² Sienkiewicz did not create the difficulties which form the subject matter of this article. But what is clear is that the difficulties in Barker have been crystallized and brought into sharp relief.

What could be dismissed as a quirk of the common law, as an unruly and indomitable ‘no go’ niche of the law of negligence, as a ‘one-off’ welded to Fairchild, is now not so easy to ignore. Why? Because talk of a new tort immediately raises numerous questions: To whom and by whom is this new duty owed? Is the standard of care the same as the ‘normal’ negligence standard? Presumably the answer is that nothing is changed in these regards, but the questions remain unanswered nonetheless. More importantly, the judgment raises (and encourages – see Para 17) the question at the centre of this article: who ever heard of a tort which applies to one disease?

S.3 Compensation Act 2006 was enacted to overrule Barker – but only in the context of mesothelioma

The decision in Barker was ephemeral – 83 days later the Compensation Act was implemented which put paid to ‘aliquot contribution’:

1) This section applies where–

(a) a person (‘the responsible person’) has negligently or in breach of statutory duty caused or permitted another person (‘the victim’) to be exposed to asbestos,

(b) the victim has contracted mesothelioma as a result of exposure to asbestos,

(c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and

(d) the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a), in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason).

(2) The responsible person shall be liable–

(a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos–

(i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or

(ii) by the responsible person in circumstances in which he has no liability in tort), and

(b) jointly and severally with any other responsible person.

There exists a class of clinical negligence cases which are substantively identical to Barker, and to which the Barker rationale is equally applicable.

Increasingly there is something of what Mr Justice Burton calls a ‘mesothelioma jurisprudence’ ¹³ with whole cases, acts of parliament, CPR provisions, textbooks and now lawyers devoted solely to it.

It is true that mesothelioma cases are many things – curious, rare, recalcitrant to legal analysis – but unique? Surely not.

Let us look more closely at mesothelioma's claim to be the only disease or condition requiring its own cause of action.

Mesothelioma is caused by asbestos fibres. They enter the nose or mouth and travel down the throat. But while most are dealt with uneventfully, by way of ciliary clearance, coughing or swallowing, some manage to make it through to the lungs where they inhabit the pleura or the alveoli, the vascular nuggets which act as a conduit for oxygen entering the blood. Even once inside many fibres are dealt with by macrophages – the body's ‘scavenger cells’ – by neutrophils which swallow up the harmful fibres or by cellular defence mechanisms.

But some survive. They begin to interact with mesothelial cells, in particular by interfering with cell division culminating in malignant mutations. Once the malignant cells have their own vascular supply (angiogenesis) and the growth is unchecked the fibre is as deadly as a bullet to the head. Crucially it is entirely ‘hit or miss’ whether the fibres survive. There is no cumulative effect, no increase in risk proportionate to the number of fibres, no ameliorating one's chances by engendering non-exposure. Either you have the deadly fibre or you don't. Equally crucially growth is neither continuous nor consistent. Thus there can be long periods of dormancy while any given year might equally see significant or nominal advancement. It makes mesothelioma impossible to date.

It is obvious why such an aetiology causes difficulties for PI lawyers where claims typically rest on the uninterrupted triumvirate of duty breach causation – in mesothelioma cases it is almost never possible to trace the causation to the breach. The difficulty is the inadequacy of resolutely holding to the traditional ‘but for’ approach which effectively gives employers an immunity.

It was that which prompted the modification in Fairchild, and again in Barker. But the problem with dividing personal injury up into mesothelioma and everything else is that – as with almost all world dichotomies – it is over-simplistic and inviting to the philosopher or pedantic lawyer.

What, for example, of a modified version of the clinical negligence case of Wootton, ¹⁴ ‘Wootton +’?

In that case, the Claimant was prescribed Logynon in lieu of her regular contraceptive Microgynon – the main difference was the quantity of progesterone and a shortfall of around 50 mcg per pill. The Claimant noticed after a few days but the medical evidence was she had conceived by then, during the ‘tortious’ period. At trial, the Claimant argued that the error in prescription had materially increased the risk of conception.

On the facts Lord Justice Moses and Lady Justice Hallett rejected the contention that there had been such an increase in risk, holding (no doubt with some relief) that it was ‘not a case in which to add to the teaching of the court of appeal on causation’.

But suppose they had reached a different conclusion? Suppose too that the non-tortious period (due to the fallibility of all contraception) and the tortious periods were more or less identical and that the couple's intercourse straddled these fine temporal lines such that it was impossible to say in which period the conception occurred.

Is not the Claimant in an identical position to the employee in Barker?

Looking again at our list of Fairchild prerequisites, there is a proven breach of duty – by the time of the appeal, that was no longer an issue before the Court; there was also eventuated damage in the form of the turbulent perinatal period which ensued (although the newborn was fit and well and thus there was no wrongful conception claim).

An inherent difficulty exists in pinpointing the exact time of conception and this difficulty – despite the Defendant's contention that ‘the biology was understood’ – is surely attributable to the imperfection of medical science rather than evidential lacuna. ¹⁵

There is also indivisibility of injury; there is no cumulative hinterland – either you have conceived or you haven't.

Lastly all possible causes of the pregnancy are the same – the husband's sperm – and thus the single agent requirement – the usual apologia meted out by the judiciary to clinical negligence practitioners – is satisfied.

The Courts have exhibited an almost knee-jerk disinclination for extending liability into clinical negligence, coupled with a Pyrrhic insistence that the space is clear for such a claim. ¹⁶ But it is hard to see a principled reason why – if Barker is correct – the Claimant in ‘Wootton +’ should not also recover. It, therefore, remains only to wait for the logic of a suitable case to come before the appellate courts and to test the strength of that disinclination.

But S.3 will not operate to bar such claims.

This is uncontroversial. The statute is clear, concise and unambiguous.

The rationale for the act was also the government's concern at the plight of mesothelioma victims whose percentage slashed damages might foist them upon the state; a rationale absent in the clinical negligence setting.

Pandora's box

It is obvious why ‘thus far and no further’ is unsatisfactory – it massively belies the law's aspiration to be ‘reason free from passion’. The arrested development of the common law occasioned by Alcock continues to disappoint. I know of one senior barrister who recently began a secondary victim advice with an apology for the state of English law, while it is not unheard of for Defendants to settle cases on the basis that a challenge under the HRA would probably succeed, but they like the law the way it is thank you very much.

But nor is the path of answering the dictates of logic free from obstacle.

For one, why should it not apply to personal injury cases not analogous to mesothelioma, such as, say, Clough v First Choice. ¹⁷ Mr Clough was in high spirits on holiday when he scaled a poolside wall. Predictably, he fell. The contenders for causation were the Claimant's drunkenness, and the Defendant's failure to apply specifically ‘non-slip’ paint. Did not the failure to use non-slip paint ‘increase the risk’ of falling? It must have done, because otherwise what is the ‘non-slip’ paint doing?

Where, too, would such a decision leave Gregg v Scott? Lord Rodger in Barker saw the writing on the wall, ¹⁸ but is this right? Technically Gregg would still hold true for cases which were not analogous to mesothelioma in terms of non-cumulative nature, indivisibility of injury and dating, but if so, it would be left hanging by the narrowest of threads. Either way the law is not bathed in glory: there will either be an unbecoming volte face just five years on, or the creation of fine distinctions which in emotionally trying cases seem positively to invite ‘satellite litigation’.

Why should a mesothelioma sufferer get 100% damages (because of s.3) but the victim of any other injury get proportionate damages?

Why should someone whose risk is increased to 51% get full damages but someone whose risk increases by 49% get 49%?

Also, the decision in Barker to extend the Fairchild exception to cases in which non-tortious causes were also at play was in no uncertain terms based on aliquot contribution. ¹⁹ Is that extension therefore also invalidated by s.3? If so, non-tortious causes will be fatal to the Claimant's case in mesothelioma cases, but irrelevant everywhere else.

Then there is the problem of ‘reference classes’ – the problem of how much statistical information a court should take into account in assessing percentage probabilities – a problem so acute that it practically has its own shelf in law libraries.

These are problems which are beyond the scope of this article which very sensibly promised to side-step the whys and the wherefores. But equally, they cannot be ignored – because they may just constitute a greater evil than ‘thus far and no further’.

The new tort

Predicting the precise shape of things to come is inevitably difficult. Unfettered, though, the tort has the potential to impact upon several areas of clinical negligence and personal injury. Spheres which frequently countenance indivisible injuries (blindness, deafness, conception, etc.) are the most fecund and most likely to be impacted upon.

Product liability

Suppose a company non-tortiously manufactures a contact lens solution in the following circumstances: it is released into the market on 1 January but by 1 February tests indicate that the solution is defective in that it tends to lead to an eye malady, E. The Court finds that this is the date upon which the solution should have been withdrawn but in fact it is not withdrawn until a month later, on 1 March.

Now suppose that a Claimant's use straddles these two periods and that the mechanism of injury is analogous to mesothelioma: that contraction is not linked to cumulative exposure (save that the more one uses it, the more likely one is to encounter that agent), and that there is a single causal agent responsible for E, albeit one whose genesis is impossible to date. Again, we appear to have a close analogy with Barker.

Pre-conception torts

A claim under the Congenital Disabilities Act 1976 is supervenient on a theoretical underlying claim by the child's parent:

Subject to the following subsections, a person (here referred to as ‘the Defendant’) is answerable to the child if he was liable in tort to the parent or would, if sued in due time, have been so; and it is no answer that there could not have been such liability because the parent suffered no actionable injury, if there was a breach of legal duty which, accompanied by injury, would have given rise to the liability.

But take CJD or thalidomide. ²⁰ A legally valid civil claim was never a prerequisite of payment under the terms of the various government trusts and thus in cases of maternal transmission children pursuing claims may be unable to show ‘answerability’.

In the CJD context, it was held that Claimant parents whose treatment was mostly before the ‘threshold date’ (the date that guilty knowledge triggered the beginning of the tortious period) were unable to claim compensation through the normal channel of the civil courts, having failed the ‘but for’ test. But surely a child Claimant suing today could establish the less onerous proposition that the risk to their parent of contracting CJD increased, thereby providing the forum for a fascinating test for the new tort. Fascinating because, although the parent's hypothetical claim would be for proportionate damages (to the extent that the risk to the parent was increased), that action would nevertheless presumably constitute a ‘liability in tort’ for the purposes of section 1(3), thereby entitling the child to 100% compensation.

Environmental torts

The recent press furnishes further examples of how the tort might be used. The first is one taken up this year by Leigh Day – that of the Londoners allegedly poisoned by contaminated Thames water. The new tort is not a substitute for proving causation but it is easy to see how the facts might prove amenable to the Barker analogy.

The same could be said of the birth defects in Falluja allegedly attributable to uranium use. Or, say, to the imminent trial of the claim brought by parents of ‘Woomera babies’ against the Ministry of Defence, over whether a constellation of birth defects, skin conditions and cancer was caused by nuclear testing in the Australian Outback.

Conclusions

Sienkiewicz is the first case under the 2006 Act – and the first to herald the existence of a ‘new tort’ of negligently increased risk in which increased risk, not the eventuated result, is compensable.

The aliquot contribution damages to which Barker would give rise is barred by virtue of s.3 of the Compensation Act 2006 – but crucially only in the context of mesothelioma.

It, therefore, remains open to Claimants to argue that Barker – but not the Act – applies with equal force in non-mesothelioma cases.

Talk of a ‘new tort’ has crystallized the difficulties which originated in Barker and is about to force the common law into a perplexing but familiar dilemma: Between following the dictates of logic – which risks opening a Pandora's box of legal difficulties – and creating an artificial bifurcation of the law by distinguishing mesothelioma and ‘everything else’.