In McGhee v National Coal Board [1973] 1 WLR 1 the UK's House of Lords considered
the question of causation in circumstances where the claimant, who had developed
dermatitis, could show that the defendant had:
•
breached its duty of care
•
that this breach had materially increased the risk of suffering dermatitis
•
but could not prove that but for the breach, he would probably not have
suffered dermatitis.
The Court held that causation was nevertheless sufficiently established (one of the
judges, Lord Wilberforce, going so far as to propose a reversal of the burden of
proof):
But the question remains whether a pursuer must necessarily fail if, after
he has shown a breach of duty, involving an increase of risk of disease, he
cannot positively prove that this increase of risk caused or materially
contributed to the disease while his employers cannot positively prove the
contrary. In this intermediate case there is an appearance of logic in the
view that the pursuer, on whom the onus lies, should fail - a logic which
dictated the judgments below. The question is whether we should be
satisfied, in factual situations like the present, with this logical approach. In
my opinion, there are further considerations of importance. First, it is a
sound principle that where a person has, by breach of a duty of care,
created a risk, and injury occurs within the area of that risk, the loss should
be borne by him unless he shows that it had some other cause. Secondly,
from the evidential point of view, one may ask, why should a man who is
able to show that his employer should have taken certain precautions,
because without them there is a risk, or an added risk, of injury or disease,
and who in fact sustains exactly that injury or disease, have to assume the
burden of proving more: namely, that it was the addition to the risk, caused
by the breach of duty, which caused or materially contributed to the injury?
In many cases, of which the present is typical, this is impossible to prove,
just because honest medical opinion cannot segregate the causes of an
illness between compound causes. And if one asks which of the parties, the
workman or the employers, should suffer from this inherent evidential
difficulty, the answer as a matter of policy or justice should be that it is the
creator of the risk who, ex hypothesi must be taken to have foreseen the
possibility of damage, who should bear its consequences. (per Lord
Wilbeforce, page 6).
Lord Simon considered that previous case-law had already established a rule (at
page 8):
... that where an injury is caused by two (or more) factors operating
cumulatively, one (or more) of which factors is a breach of duty and one (or
more) is not so, in such a way that it is impossible to ascertain the
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