Dutton - Medical Malpractice in SA

Causation 69
which eventually occurred from the accumulation of coal dust on his skin. Had
his employer provided shower facilities, the coal dust could have been washed
off before cycling, reducing the risk of contracting dermatitis. McGhee sued his
employer for negligence for failing to provide proper washing facilities. Due to
the limits of scientific knowledge, it was impossible to rule out the possibility
that he hadn’t contracted dermatitis while working in the kiln, and that the dermatitis
was therefore not caused by the negligence of his employer in failing to
provide washing facilities. The issue which came before the House of Lords was
whether the failure to provide the washing facilities had caused the rash. On the
application of the ‘but for’ test, the claim must have failed. However, the House of
Lords held that the risk of harm had been materially increased by the prolonged
exposure to the dust. Lord Reid stated: ‘The medical evidence is to the effect
that the fact that the man had to cycle home caked with grime and sweat added
materially to the risk.’ The material increase in risk was treated as equivalent to a
material contribution to damage. The implication of the case was significant, as
it meant that a claimant need not demonstrate that the defendant’s actions were
the ‘but for’ cause of the injury, but instead that the defendant’s actions ‘materially
increased the risk’ of injury, and thus damage, to the claimant.
In Fairchild v Glenhaven Funeral Services Ltd, 51 Mr. Fairchild had worked for
a number of different employers, all of whom had negligently exposed him to
asbestos. Mr. Fairchild contracted pleural mesothelioma. He died, and his wife
sued Mr. Fairchild’s employers for negligence. But the claim faced a significant
hurdle: a single asbestos fibre, inhaled at any time, can trigger mesothelioma (the
claim was therefore redolent of Lee v Minister of Correctional Services). 52 The risk
of contracting an asbestos-related disease increases depending on the amount of
exposure to it. The disease also has long latency periods (it can take between 25
and 50 years before symptoms of the disease become evident). It was impossible
to know when Mr. Fairchild inhaled the fatal asbestos fibre, and it was therefore
impossible to identify the particular employer at the crucial time of inhalation.
While it was possible to say ‘it was one of them’; it could not be ascertained which
one. Under the normal causation test, none of the employers would have been
found, on the balance of probabilities, to have caused the harm, because it could
not be said that ‘but for’ the conduct of that particular employer the injury would
not have been caused.
The House of Lords however stated:
‘Tort law is about compensating those who are wrongfully injured. But even more fundamentally,
it is about recognising and righting wrongful conduct by one person or a
group of persons that harms others. If tort law becomes incapable of recognising important
wrongs, and hence incapable of righting them, victims will be left with a sense of
grievance and the public will be left with a feeling that justice is not what it should be.
51
[2002] 3 All ER 305; G Turton ‘Sienkiewicz v Greif (UK) Limited: A cautionary tale for causation’
Journal of Professional Negligence (2011) 27 PN 166–172.
52
2013 (2) SA 144 (CC).