Background concepts[ edit ] Legal systems more or less try to uphold the notions of fairness and justice. If a state is going to penalize a person or require that person pay compensation to another for losses incurred, liability is imposed according to the idea that those who injure others should take responsibility for their actions. Although some parts of any legal system will have qualities of strict liabilityin which the mens rea is immaterial to the result and subsequent liability of the actor, most look to establish liability by showing that the defendant was the cause of the particular injury or loss.
Therefore, the courts have modified the but for test. In Wilsher v Essex Area Health Authority the defendant could only be held responsible for one of the possible risk factors and it could not be shown that this Tort law causation the risk of the claimant suffering the harm.
Therefore, despite the widening of the but for test the claimant was still unable to satisfy the causation requirement. Divisible injury The issue arises: The claimant suffered asbestosis due to exposure to asbestos at work.
The asbestosis was a cumulative condition, which got progressively worse the longer the exposure continued. Over a period of time, the claimant had been carrying out the same work for several employers, including the defendant. To what extent was the defendant liable?
The defendant would be responsible for a proportion of the harm suffered by the claimant. Therefore, damages were apportioned between the defendant and the other employers the tortfeasors according to the length of time the claimant worked for each employer.
The claimant must make a claim against all the tortfeasors in order to recover full damages. S1 Entitlement to contribution S2 Assessment of contribution Under of the Civil Liability Contribution Actthe defendants are jointly and severally liable for the full damages owed to a claimant.
This means a claimant may bring a claim for full damages against only one of the defendants. It aids a claimant to recover full damages even if one of the other defendants is insolvent or untraceable.
In addition, under S2 1the courts can apportion liability for damages between the defendants according to their share of responsibility for the harm caused. Recent developments A recent decision has been criticised for weakening the test for factual causation and therefore, leaving employers and insurers vulnerable to large claims.
However, it can also be seen as providing just recourse for claimants who have suffered serious harm. The claimants had developed mesothelioma, a cancer, caused by exposure to asbestos.
The claimants had worked for several employers and were exposed to asbestos in each job. The defendants were some but not all of the employers.
Medical evidence failed to show which of the employers had been responsible for the exposure which led to the cancer. Each defendant argued that the but for test was not satisfied as their breach may have not been responsible for triggering the cancer.
Could the defendants be held responsible? The Court of Appeal found that the lack of medical certainty meant that causation could not be proved. However, the House of Lords approved the approach in McGhee v National Coal Board finding that the defendants had materially contributed to the risk of the claimants contracting the cancer.
It also found that mesothelioma was an indivisible injury and therefore, the defendants were jointly and severally liable. Another controversial decision followed, which appeared to retract the scope of the decision in Fairchild v Glenhaven Funeral Services Ltd . Barker v Corus  2 AC Facts: The claimants contracted mesothelioma working for a number of employers.
However, when the case was brought the defendant was the only employer still trading.To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant.
In most cases a simple application of the 'but for' test will resolve the question of causation in tort law. The most widely used test of actual causation in tort adjudication is the but-for test, which states that an act (omission, condition, etc.) was a cause of an injury if .
Causation is just one component of the tort. On other occasions, causation is the only requirement for legal liability (other than the fact that the outcome is proscribed). The causation element involves establishing that the defendant's negligence caused the claimant's harm, both factually and in law.
Factual causation: the 'but for' test There must be a factual determination as to whether the defendant's actions caused the . To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant.
In most cases a simple application of the 'but for' test will resolve the question of causation in tort law. ACA's amicus brief focuses particularly on the latter argument, by tracing the tort law causation requirement back to pre-Revolutionary times and explaining how the principles underlying the causation requirement are embedded in the Constitution itself.