Date: Tue, 12 Feb 2008 18:41

From: David Cheifetz

Subject: Barker/Fairchild - apportionment between tortious and non-tortious causes

Dear Colleagues:

Lord Hoffmann wrote in Barker v. Corus that the risk-creation rationale in Barker/Fairchild for proportional liability - that the facts permit no better conclusion than that a defendant's wrongful conduct created the risk of so is a possible cause of the harm that materialised and, in the circumstances, that justice requires that liability be imposed on the defendant - applies, in principle, whether the problem is that we have more than one wrongdoer-candidate or the combination of wrongful and non-wrongful causal candidates or a combination of those patterns. Fairchild and Barker have the combinations. McGhee and Bonnington are the single wrongdoer pattern. Para. 17 of Barker is:

It should not therefore matter whether the person who caused the non-tortious exposure happened also to have caused a tortious exposure. The purpose of the Fairchild exception is to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead. For this purpose, it should be irrelevant whether the other exposure was tortious or non-tortious, by natural causes or human agency or by the claimant himself. These distinctions may be relevant to whether and to whom responsibility can also be attributed, but from the point of view of satisfying the requirement of a sufficient causal link between the defendant's conduct and the claimant's injury, they should not matter.

Putting aside England's Holtby and Allen, since they predate Barker - and Scotland's Wright v Stoddard since there was more than one employer and Lord Uist preferred orthodoxy and Lord Rodger's dissenting position - do any of you know of a true one-defendant-as-the-source case where the apportionment argument has now been made? Where Lord Hoffmann's dictum has been applied or discussed?

Have any of you written about that issue, yet, or know of a piece on the horizon?

Thanks,
David Cheifetz

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