Dear Colleagues:

 

What is the UK test for duplicative factual causation after Sienkiewicz?  What is the test to be applied if the two fire hypothetical occurs in the UK, or a Corey v. Hanover analogue occurs?

Sienkiewicz  is a "how much evidence is enough - how does the plaintiff prove what is enough" case, not a duplicative causation, overdetermined injury, case.

 

It seems to me that, whether it was intended or or not, the Bonnington "exception to the but-for test" that Lords Phillips and Brown describe seems to amount to a necessary condition test, without any explanation for why it is needed as an "exception to but-for". Or they're both using "cumulative effect in an unorthodox and unexplained way.

 

That defining it as they did  turns it into the but-for test expressed in other words, not an exception makes the paragraph just a bit of problem. But if it's an exception, what was the exception Lord Phillips had in mind other than separately sufficient causes? Yet he did not use that term anywhere in his discussion of Bonnington.

 

If the causes are all necessary for the injury, then it is by definition indivisible injury.The converse is not true - the injury can be indivisible but the causes are separately sufficient. However, it does not seem to me that Lord Phillips was using cumulative effect to refer to the indivisible consequence of separately sufficient causes in the first part of para. 17 and the uses of cumulative, with or without effect, later, seem to me to reinforce the idea he was treating Boninington as a case where both the exposures were necessary. That seems to be what Lord Brown thought Lord Phillips meant, too: see para. 186.

 

I don't see anything in the other reasons that helps.

 

Cheers,

 

David Cheifetz