Negligence – Health and safety at work – Employers’ liability – Application of exception to ‘but for’ test of causation

Grace Sanderson (administratrix of the estate of Mr Sanderson, deceased) v Donna Marie Hull: CA (Civ Div) (Lords Justice Tuckey, Scott Baker, Smith): 5 November 2008

The appellant (S) appealed against an order that they were liable for an infection that the respondent (H) had contracted while working for them.

H had been employed as a turkey plucker. She was provided with gloves and aprons, but a few days later she started to work without gloves. She was subsequently diagnosed as suffering from campylobacter enteritis. She alleged that she had been infected by the bacterium during the course of her employment, and that S, in breach of their duty, had failed to protect her from the risks of infection that were inherent in handling dead poultry. Experts agreed that the only route by which the bacterium could have entered H’s body was by her mouth. The recorder held that S had been negligent and had breached several statutory duties, which included a failure to warn H of the risks of exposure to the bacterium and advise her as to the precautions she should take to minimise the risk of infection. As to causation, the recorder in his draft judgment held that H had failed to prove that but for S’s negligence she would probably not have contracted the infection. However, he reconsidered his holding on causation after being requested by H on the basis that it was impossible for her to satisfy the test. The recorder concluded that the exception to the ‘but for’ test applied and that H had established the causal link between breaches of duty and injury by showing that the breaches had materially increased the risk of infection. S submitted that (1) the recorder should not have acceded to the request to reconsider the issue of causation, because the issue of material contribution to risk had not been argued at the trial; (2) the case was not one where the exception to the ‘but for’ test of causation applied, that the recorder had wrongly extended the exception to another disease or condition, and that it was not impossible for H to satisfy the ‘but for’ test.

Held: (1) H’s request was not an attempt to re-argue the issues that had already been argued and decided; it was an admission that she had failed to raise what she later thought was a vital issue. S had a fair opportunity to put their case on the new point. The recorder should not be criticised for taking the course he had, Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 1002, [2008] 1 WLR 1589 and R (on the application of Edwards) v Environment Agency (No2) [2008] UKHL 22, [2008] 1 WLR 1587 considered.

(2) Great caution was required before any development of the exception to the ‘but for’ test of causation should be allowed, Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) (2002) UKHL 22, [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] UKHL 20, [2006] 2 AC 572 considered. However, the conditions set out in Fairchild in relation to mesothelioma, which might justify the relaxation of the test, were not intended to exclude the application of the exception to other diseases and circumstances. An essential element for the extension of the exception was to be the impossibility for the claimant to prove enough to satisfy the ‘but for’ test: mere difficulty of proof would not be enough, Fairchild considered. In the instant case, the recorder had not properly analysed the facts relating to negligence and causation. The recorder’s difficulties in reaching a conclusion on causation were created not by any impossibility of proof but by his failure to make crucial findings of fact. If the necessary findings of fact had been made, he would have been able to make a decision on the usual ‘but for’ basis. If he had held that, if properly warned, H would have been careful not to touch her face while working, he might then have been able to say that she would probably not have done so, although he might have recognised that a small risk remained that she would do so. If he had accepted that, if warned, H would not have discarded the gloves, he could then have held that it was unlikely that her hands would have been infected. Finally, he would have had to recognise that there was some risk of contact from door handles and other places that could not have been reduced or avoided by any amount of warning. If findings of that kind had been made, it would have been open to the recorder to hold that, on the balance of probabilities, H would not have been infected. Therefore, the instant case was not one in which it was impossible for H to prove causation. The crucial issues were not incapable of proof, which was a necessary feature if a case was to be brought within the Fairchild exception. Accordingly, the recorder was wrong to hold that the case fell within the Fairchild exception.

Appeal allowed.

Simon Butler, Abi McHugh de Clare (instructed by Birchall Blackburn) for the appellant; Stephen Douglas (instructed by A D Varley & Co) for the respondent.