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'But for' rule reaffirmed

Sanderson v Hull (Court of Appeal - 5 November 2008)

In this case the Court of Appeal scrutinised the so called Fairchild exception to the but for causation rule.

The claimant was employed as a turkey plucker. She was provided with gloves and aprons but a few days later started to work without gloves. She became ill and was diagnosed as suffering from campylobacter bacterium.

The trial judge held the defendant negligent and in breach of statutory duty by failing to provide suitable glover and to warn of the risk of exposure to infection.

He accepted that the case fell within the Fairchild exception as the claimant had established that the breaches of duty had materially increased the risk of infection.

In Fairchild v Glenhaven Funeral Services (2003) it was decided that where it was scientifically impossible for the claimant to that but for the defendants negligence he would not have contracted mesothelioma, he could prove his claim by demonstrating that a defendant had materially contributed to the risk of him contracting the condition.

The defendant in Hull successfully appealed the judgement and the court reaffirmed the but for rule. It is not enough for a claimant to say the defendants negligence has materially increased the risk of injury: he must still show that the risk created by the defendants negligence caused or made a material contribution to the injury.

The Court of Appeal held that the Hull recorder had failed to make crucial findings of fact in respect of causation which would have assisted him finding for or against the claimant without resort to the exception.

General Comment

Hull reinforces the view that Fairchild was a policy decision and always meant to be a very narrow exception to the but for rule. The probability of outcomes arising out of the defendants negligence must be considered. It is the state of scientific knowledge about the precise mechanism by which diseases such as mesothelioma are caused which underpins the rationale for the Fairchild exception and makes it likely that it will only ever apply in very limited circumstances. Certainly it is hard to imagine when it might apply in a personal injury claim arising from a single incident.

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