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Sanderson v Hull, Court of Appeal, 5 November 2008

21 November 2008
The issues

Fairchild v Glenhaven Funeral Services Ltd – burden of proof – exception to “but for” test.

The facts

The Claimant alleged she had been infected by the campylobacter bacterium as a result of her employer’s breach of duty during the course of her employment as a turkey plucker. Mr and Mrs Sanderson ran a farm near Preston. Each year before Christmas they took on extra labour to prepare turkeys for sale. On the 15th December 2003 Ms Hull began work and on the 20th December 2003 became ill and was diagnose as suffering from campylobacter enteritis. She believed this came from her employment. She alleged that the turkeys had been infected with the bacterium as a result of eating contaminated food. That allegation had been abandoned at Trial and the action proceeded on the basis that the employers had failed to protect her from the risks of infection, inherent in handling dead poultry. The expert evidence was to the fact that the bacterium could only have entered the Claimant’s body by her mouth.

The Recorder found that the Defendants were in breach of statutory duty, including failure to warn her of the risks of exposure to the bacterium and as to any advice as to precautions she should have taken to minimise the risk of infection. In term of causation, the Recorder found that the Claimant had failed to prove that but for the Defendant’s negligence, she would probably not have contracted the infection but further concluded that the exception to the “but for” test applied and that the Claimant had established the causal link by showing that the breaches had materially increased the risk of infection.

The Defendant Appealed.

The decision

Great caution was required before any development of the Fairchild exception should be allowed. In Fairchild their Lordships had not all spoken with one voice. Lord Rodger had been taken to summarise the requirements for the exception to apply. Of his six requirements, Lord Rodger himself in Barker v Chorus had subsequently accepted that it had been too narrowly formulated (in Fairchild he had said that the principle applied sixthly where the other possible sources of the Claimant’s injury were similar but lawful acts or omissions of the same Defendant). He had said that it was too narrowly formulated and held that the principle did apply where the other possible source of injury was a similar but lawful act of omission of the Defendant or of someone else or a natural occurrence and, with this, Lord Hoffman had agreed. Apart from the sixth principle, his conditions were a useful guide to the scope of the exception. The Recorder had stated that the breaches of duty increased the risk that the Claimant would contract the infection. That was correct but it was trite law and that alone was not sufficient to satisfy the test or causation. Nor was it enough to bring the case within the Fairchild exception. The Claimant had to show on the facts of this case that there was some other exposure which could have been a potential cause of the injury and that it was scientifically impossible to show which exposure caused the injury. She had not succeeded in doing so.

The Claimant had to show that it was inherently impossible for the Claimant to show exactly how the injury was caused. The Claimant in this case failed to pass this hurdle.

Secondly, the Defendant’s conduct must have materially increased the risk of injury to the Claimant. That condition was satisfied.

Thirdly, the Defendant’s conduct must have been capable of causing the Claimant’s injury. In this case it clearly was.

Fourthly, the Claimant had to show that the injury was caused by the eventuation of the kind of risk created by the Defendant’s wrongdoing. In this case it was – the kind of risk created was the risk of contracting bacterial infection and that was the risk that eventuated.

Fifthly, the injury must have been caused by the same agency as was involved in the Defendant’s wrongdoing or an agency which operated in a similar way. Here the same agency was involved, namely the campylobacter bacterium.

The problem therefore was whether the Claimant could show that there was another potential cause of her injury besides the employer’s failure to warn her about the bacteria and to provide her with suitably protective clothing. Having shown what that other potential cause could have been, the Claimant would also have had to show that it was impossible for her, on the present state of scientific knowledge, to show which exposure had caused the injury. Here the Recorder had fallen into error because he had not properly analysed the facts relating to negligence and causation. He had found that the turkeys were infected but that that had occurred without negligence. The fact that the Claimant’s hands could have become contaminated was not due to the employer’s negligence. That was the case whether or not she wore gloves. It was also possible she might have picked up the infection on her hands by touching an infected surface. No findings were made as to whether it was negligent of the employers to have permitted that to happen. Thus, whether the Claimant got the infection on her hands directly from a turkey or directly from a surface which had become contaminated, the presence of the infection on her hands could not have been said to be due to the employer’s negligence. The cause of the Claimant’s injury was that she transferred some bacteria from her hands to her mouth. The real question was, or should have been, to ask how that could have happened and consider whether if any or all of the possible methods of transfer resulted from breach of duty. If the necessary findings of fact had been made, the Recorder would have been able to have made a decision on his usual “but for” basis. If, for example, he had said that, properly warned, the Claimant would have been careful not to touch her face whilst working he might have been able to say that she would probably not have done so. If he had accepted that, if warned, she 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 avoided by any amount of warning. If findings of that kind had been made it would have been open to the Recorder to hold on a balance of probabilities that the Claimant would not have been infected. The issues were not ones in which it was impossible for the Claimant to prove causation – they were not incapable of proof, which was a necessary feature if the case was to be brought within the Fairchild exception.

Appeal allowed.

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