proportion in which the factors were effective in producing the injury or
which factor was decisive, the law does not require a pursuer or plaintiff to
prove the impossible, but holds that he is entitled to damages for the injury
if he proves on a balance of probabilities that the breach or breaches of
duty contributed substantially to causing the injury. If such factors so
operate cumulatively, it is, in my judgment, immaterial whether they do so
concurrently or successively.
Indeed Lord Simon regarded "material reduction of the risk" and "substantial
contribution to the injury" as mirror concepts. Any other conclusion would mean
that the defenders were under a legal duty which they could, on the present state of
medical knowledge, ignore (page 9).
Lord Kilbrandon expressed a similar conclusion as follows:
When you find it proved (a) that the defenders knew that to take the
precaution reduces the risk, chance, possibility or probability of the
contracting of a disease, (b) that the precaution has not been taken, and (c)
that the disease has supervened, it is difficult to see how those defenders
can demand more by way of proof of the probability that the failure caused
or contributed to the physical breakdown ... In the present case, the
pursuer's body was vulnerable, while he was bicycling home, to the dirt
which had been deposited on it during his working hours. It would not have
been if he had had a shower. If showers had been provided he would have
used them. It is admittedly more probable that disease will be contracted if
a shower is not taken. In these circumstances I cannot accept the argument
that nevertheless it is not more probable than not that, if the duty to
provide a shower had not been neglected, he would not have contracted
the disease. The pursuer has after all, only to satisfy the court of a
probability, not to demonstrate an irrefragable chain of causation, which in
a case of dermatitis, in the present state of medical knowledge, he could
probably never do.
Lord Salmon stated:
In the circumstances of the present case, the possibility of a distinction
existing between (a) having materially increased the risk of contracting the
disease, and (b) having materially contributed to causing the disease may
no doubt be a fruitful source of interesting academic discussions between
students of philosophy. Such a distinction is, however, far too unreal to be
recognised by the common law.
Market share liability doctrine
In the US, Sindell v Abbott Laboratories 26 Cal. 3d 588 (1980) was a class action for
personal injuries said to have resulted from pre-natal exposure to the antimiscarriage drug diethylstilbestrol (DES) which had been manufactured by one of a
34
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents