Factual and Procedural Background
In 2003, the Plaintiff began employment as a turkey plucker at a farm operated by individuals referred to as the Employers. Shortly after starting work, the Plaintiff became ill with campylobacter enteritis, alleging that the infection was contracted due to the Employers' breach of statutory and common law duties during her employment. The Employers denied liability and causation. The Plaintiff initially alleged the turkeys were infected through contaminated food but abandoned this claim during the hearing, proceeding solely on the basis that the Employers failed to protect her from inherent risks in handling dead poultry.
The case was heard in the Preston County Court in December 2007 before Mr Recorder Halliwell, who found in favor of the Plaintiff, awarding damages. The Employers appealed the decision. The appeal concerns the application of the "Fairchild" principle, an exception to the traditional 'but for' test of causation in tort law, and the propriety of a judge reconsidering his decision after issuing a draft judgment.
Legal Issues Presented
- Whether the Fairchild principle, which relaxes the 'but for' test of causation, applies to the Plaintiff's claim of campylobacter infection contracted during employment.
- Whether it was appropriate for the trial judge to reconsider and revise his judgment after issuing a draft judgment upon receiving new submissions from counsel.
- Whether the Employers' breaches of duty materially increased the risk of the Plaintiff contracting the infection and if causation was established on the balance of probabilities.
Arguments of the Parties
Appellant's Arguments
- The Employers contended that the traditional 'but for' test of causation should apply and that the Plaintiff failed to satisfy this test, as she could not prove that the infection was caused by their breach of duty.
- They argued that the Fairchild principle should be narrowly confined and does not extend to the Plaintiff’s condition or the circumstances of this case.
- The Employers submitted that the trial judge should not have entertained new submissions on causation after the draft judgment because the issue of material increase of risk was not pleaded or argued at trial.
- They maintained that the Plaintiff had not shown it was impossible to prove causation on a scientific basis and that the risk of infection could have come from non-negligent sources.
- They argued that the Fairchild exception does not apply to single incident accidents or infections from a single exposure.
Appellee's Arguments
- The Plaintiff argued that it was impossible to satisfy the 'but for' test because she could not prove the precise route of infection due to scientific uncertainty.
- She submitted that the Fairchild principle applies as the Employers' breaches of duty materially increased the risk of her contracting the infection.
- She relied on precedent from Fairchild v Glenhaven Funeral Services and McGhee v National Coal Board, which allow causation to be established by showing material increase in risk in cases of scientific uncertainty.
- The Plaintiff sought permission for further submissions after the draft judgment to address the causation issue on the basis of the material increase of risk test.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 |
Relaxation of the 'but for' test of causation where it is impossible to prove which exposure caused the injury, allowing recovery if the defendant materially increased the risk. |
The court considered whether the principle applies to campylobacter infection and concluded that the trial judge erred in applying it to this case as the necessary conditions were not met. |
| McGhee v National Coal Board [1973] 1 WLR 1 |
Material increase in risk can suffice for causation in cases where proof of actual causation is scientifically impossible. |
Referenced as a foundational case supporting the principle applied in Fairchild; acknowledged that the principle might extend beyond mesothelioma to other conditions. |
| Barker v Corus UK Ltd [2006] AC 572; [2006] UKHL 20 |
Confirmed the scope and limits of the Fairchild exception, emphasizing restraint in extending it. |
Used to assess whether the Fairchild exception could apply, with the court noting the need for caution and the limited scope of the exception. |
| Wilsher v Essex Area Health Authority [1988] AC 32 |
Clarified limits of applying material increase in risk in clinical negligence cases. |
Distinguished as a case where the principle did not apply due to multiple possible causes, supporting narrow application of Fairchild. |
| Clough v First Choice Holidays and Flights Limited [2006] EWCA Civ 15 |
Held that the Fairchild exception does not apply to single incident accidents. |
Supported the argument that the Fairchild principle should not be extended to the Plaintiff's case, which involved a single exposure incident. |
| Darren Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 2002 |
Discouraged reargument of cases on receipt of draft judgments except in exceptional circumstances. |
Referenced regarding the propriety of reopening issues after draft judgments; court found no abuse in reconsideration here. |
| Edwards v Environment Agency [2008] UKHL 22 |
Described attempts to reopen arguments after judgment as an abuse of process where unjustified. |
Referenced to frame the court's view on reconsideration of judgments; the court found the request in this case was not improper. |
Court's Reasoning and Analysis
The court began by addressing the procedural issue of whether it was appropriate for the trial judge to reconsider his decision after issuing a draft judgment. It found no impropriety in the Plaintiff's counsel requesting reconsideration of causation on the basis of the Fairchild principle, noting that the judge acted properly in reopening the issue and allowing further submissions.
Turning to the substantive issue, the court analyzed whether the Fairchild exception to the 'but for' test applied. The court carefully examined the conditions set out by Lord Rodger in Fairchild and considered relevant authorities including Barker, Wilsher, and Clough. It emphasized the necessity of scientific impossibility in proving causation for the exception to apply.
The court found that the Plaintiff had not demonstrated that it was inherently impossible to prove causation on the balance of probabilities. Evidence showed that the infection was likely contracted at work via oral ingestion of bacteria, and the Plaintiff could have satisfied the 'but for' test if the trial judge had made specific findings on how the Plaintiff would have acted if properly warned and whether the breaches of duty caused or materially contributed to the infection.
The court noted that the trial judge failed to make essential findings of fact regarding the Plaintiff’s likely response to warnings and the causative potency of the Employers' breaches. The presence of non-negligent sources of infection meant the case did not involve competing tortious and non-tortious exposures as required for Fairchild's application.
Consequently, the court concluded that the Fairchild principle did not apply and that the case should have been decided on the conventional 'but for' causation basis, on which the Plaintiff failed to prove causation.
Holding and Implications
The court ALLOWED THE APPEAL, overturning the trial judge's application of the Fairchild principle and his finding in favor of the Plaintiff.
The direct effect is that the Plaintiff’s claim fails for lack of proof of causation on the balance of probabilities. The court did not establish any new precedent, reaffirming the limited scope of the Fairchild exception and emphasizing the importance of rigorous fact-finding in causation analysis. The court also confirmed that judges may reconsider issues raised after draft judgments when appropriate, provided it does not amount to an abuse of process.