Sanderson v Hull

The Fairchild exception to ordinary causation applies only where the claimant has proved all that can be proved, but current scientific knowledge makes it inherently impossible to establish which of competing exposures caused the injury. A material increase in risk alone is insufficient. The competing exposure must involve the same, or a substantially similar, causal mechanism.

Where the issue can be resolved by findings of fact and an ordinary assessment of probabilities, evidential difficulty does not displace the but for test. A judge may reopen a discrete and vital issue after circulating a draft judgment where it was not previously argued and both parties have a fair opportunity to address it.

Ms Hull, employed temporarily as a turkey plucker, contracted campylobacter enteritis. She alleged that her employers had failed to warn her of the infection risk and to provide adequate protective arrangements. The Recorder found that she probably contracted the infection at work, but initially held that she had not proved ordinary causation.

After receiving further submissions on a draft judgment, the Recorder applied the Fairchild exception to causation and entered judgment for Ms Hull for £16,237.49. The employers appealed from the Preston County Court order on the grounds that the exception did not apply and that the Recorder should not have reconsidered the draft judgment. The central issue was whether the evidential uncertainty about the precise route of infection made proof of causation inherently impossible.

1. Appeal allowed. The Recorder was entitled to reopen causation after circulating his draft judgment. The claimant had identified a discrete point that had not been argued, rather than attempting to reargue an issue already decided. The employers had a fair opportunity to answer it. The procedure was therefore proper, although the additional costs caused by counsel’s omission might have warranted a costs consequence.

2. The court held that the Fairchild exception is exceptional. A claimant must do more than prove that the defendant’s breach materially increased the risk of injury. The claimant must show that scientific knowledge makes it inherently impossible to prove how the injury was caused, and that another possible exposure operated through the same or a substantially similar mechanism. The identity of the person responsible for the other exposure, and whether it was tortious, is immaterial.

3. The Recorder correctly found that the employers’ failures, particularly the failure to warn against transferring bacteria from hands to mouth, materially increased the risk of infection. That finding did not establish causation or engage the exception. The claimant’s infection was caused by transfer of bacteria from her hands to her mouth. The necessary questions were whether adequate warning would probably have prevented face-touching, whether suitable gloves would probably have reduced contamination at breaks, and whether handwashing would have been more thorough.

4. Those questions required factual findings and an ordinary evaluation of probabilities. They were not incapable of proof because of the state of scientific knowledge. The case was consequently governed by the ordinary requirement that the claimant prove that breach caused, or materially contributed to, the injury. The Recorder’s application of the Fairchild exception was erroneous.

5. There was no respondent’s notice or cross-appeal permitting a remittal for further findings on ordinary causation. The Recorder’s original conclusion that causation had not been proved therefore determined the appeal.

• Court of Appeal (Civil Division): Allowed the employers’ appeal and held that the Fairchild exception to causation was unavailable.
• Preston County Court: Mr Recorder Halliwell entered judgment for Ms Hull for £16,237.49 after revising his draft judgment to apply the Fairchild exception.