tortious, or whether they were man-made:
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.
It was, however necessary to prove that the type of risk to which the defendant
contributed was in fact a cause of the injury:
In my opinion it is an essential condition for the operation of the exception
that the impossibility of proving that the defendant caused the damage
arises out of the existence of another potential causative agent which
operated in the same way. It may have been different in some causally
irrelevant respect, as in Lord Rodger's example of the different kinds of
dust, but the mechanism by which it caused the damage, whatever it was,
must have been the same. So, for example, I do not think that the
exception applies when the claimant suffers lung cancer which may have
been caused by exposure to asbestos or some other carcinogenic matter
but may also have been caused by smoking and it cannot be proved which
is more likely to have been the causative agent.
Adopting such an approach to the context of climate change implies a two stage test
for 'causation':
1 The Claimant must prove, on the balance of probabilities, that climate change
was a cause of the particular injury; and, if so, that
2 That the Defendants actions or omissions have materially increased the risk
of climate change.
The Court in Barker, however, preferred to avoid the 'legal fiction' that the test was
one of causation. Rather there were circumstances in which risk creation could
displace the requirement to prove causation (Lord Scott at para. 53):
It is essential, in my opinion, to an appreciation of the effect of
the Fairchild decision to keep firmly in mind that liability was not imposed
on any of the defendant employers on the ground that the employer's
breach of duty had caused the mesothelioma that its former employee had
contracted. That causative link had not been proved against any of them. It
was imposed because each, by its breach of duty, had materially increased
43
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents