Clough v First Choice Holidays and Flights Ltd.

This is an appeal by Michael James Clough against the decision of Mr David Foskett QC sitting as a deputy High Court judge in London dated 27th January 2005 dismissing his claim for damages against First Choice Holidays and Flights Ltd.

The claim followed a catastrophic accident on 13th November 1999 when the appellant, a young man then 26 years old, slipped from a wall and broke his neck in a swimming pool accident at a holiday complex in Lanzarote.

The general background to the accident is summarised in Mr Foskett’s careful judgment. Much of the analysis of the background, the description of the layout of the complex, and the circumstances of the accident is taken directly from it.

The appellant, his then girlfriend, Zoe Laws, and their friends Ricky Lloyd and Viv Mallett, booked a holiday with the defendants for 14 days at the Las Lomas Apartments in Lanzarote. The booking was made through Eclipse, a division of the defendants, a company in business as tour operators supplying package holidays. The essential information provided by Eclipse to the claimant asserted that the safety and wellbeing of customers was a matter of high priority. It was a contractual term that responsibility was accepted for “any death, bodily injury or illness caused to you as a result of the proven negligent acts and/or omissions of our employees and agents and our suppliers and subcontractors and their servants and/or agents while acting within the scope of or in the course of their employment”.

The Las Lomas complex was comprised essentially of apartments of varying sizes, built around various swimming pools provided for the use of clients. The complex attracted families and couples from different European countries, including the United Kingdom. It was a typical “package holiday” destination for relatively young couples or couples with young families.

The holiday began on 4 November 1999. After their arrival the appellant and his friends stayed in apartments that did not overlook either the reception pool (otherwise described as pool 1) or the fountain pool (otherwise as pool 2), the pool where the claimant’s accident occurred. The apartment in which the appellant was accommodated meant that he had walked past the fountain pool on many occasions before the accident happened, and indeed had used it as well. He also knew that at the easternmost pool of the fountain pool there was a shallow circular paddling pool. It was in this part of the fountain pool that the appellant’s accident occurred.

In general the pools were closed after 7pm. Nevertheless from time to time residents at the complex would use the pools after they were formally closed for “after hours” swimming.

This pool derived its name from the fountain arrangement at its centre. It was laid out so that there was an adult pool, shaped as two adjoining circles in a “figure of eight” fashion with trees planted at the point where the two circles narrowed to form a neck. The pool was 1.1 metres deep at the shallowest end increasing in depth to 2 metres at the point where the pool was nearest to the fountain. The fountain was raised above the level of the water in the middle of a circular area surrounded by a wall. There were two half-moon shaped paddling pools to the north and south, and to the east of the fountain there was a shallow paddling pool. The judge appended an illustrative photograph (photograph A) to his judgment, ensuring that the identity of those shown in the photograph are blurred. I shall do the same.

The overall diameter of the circular area in which the fountain was located was 17 feet. The horizontal surface of the surrounding wall was 32” wide. The distance from the top of the wall to the bottom of the paddling pool was 64”. No physical barrier, adequate to prevent a fall, was provided. The depth of the water in the paddling pool was 18”, too shallow to produce any possible “cushioning effect”.

The horizontal surface of the surrounding wall was painted white with standard paint to which marble dust was added as the paint was applied. The paint itself was not “non-slip”. The marble dust was susceptible to acid, and in time would dissolve through the effect of water from the swimming pool. It was conceded by the respondents at a late stage in the litigation that, notwithstanding repeated earlier claims to the contrary, the paint used on the surface was not “designed to be non-slip”, and eventually accepted that the use of such paint constituted a breach of Spanish regulations which governed the structure and surrounds of swimming pools. In particular the walls around such pools, and the pavements around the edges, should have been made of or covered with “anti-slippery and waterproof material”.

In his submissions, Mr Frank Burton QC on behalf of the appellant drew attention to some of the written and oral evidence from the appellant and his friends, and an expert called on the appellant’s behalf, which he was anxious that we should consider. It is however unnecessary to repeat it. The judge made specific findings of fact. He concluded:

These findings speak for themselves, and are not to be criticised merely because the judge did not identify the precise nature of the increased risk of slipping consequent on the failure to use non-slip paint.

In the course of his evidence, the appellant accepted that he was familiar with the fountain pool, and the nature of the surface underfoot, and that he had not previously slipped. During the afternoon of 13 November, the appellant and Mr Lloyd spent some hours drinking together while they watched a football match between England and Scotland on television. On his own account the appellant drank up to six pints of lager. His friend drank a little more. By about 6pm they were in high spirits. In evidence, Mr Lloyd accepted that he would have been a bit intoxicated, and that his judgement would not have been 100%. He and the appellant were in a state of high spirits, and they decided to take a dip in each of the pools of the complex. With hindsight, he thought it was probably not the best of ideas.

After a swim in the first pool, the two of them moved to the fountain pool. The appellant got on to the horizontal wall adjoining the pool and, while walking along in an anti-clockwise direction in his bare wet feet, fell into the paddling pool. The judge rejected the respondents’ case that he had deliberately dived into it. He also concluded that the appellant was indeed in high spirits and under the influence of alcohol, approximately two-and-a-half times over the legal limit for lawful driving. Nevertheless, he was not incapable of realising the general nature of what he was doing.

The judge explained the appellant’s fall in the following words. “If he did not dive, the natural inference is that he lost his balance in some way and fell into the pool. This could have been because he simply stood too near the edge of the wall, and, given his intoxicated state, merely toppled over, or it could be because he slipped from some point on the horizontal surface of the wall and fell following a slip.” The judge then examined the various possibilities in the light of the evidence. On balance, he drew the inference that the appellant slipped and fell in a “toppling movement” into the pool, where, unsurprisingly, he struck his head on the surface at the bottom. Having reached that conclusion, he noted that just before his fall the appellant’s feet would have been wet, and that he would have been less steady on his feet than he would have been if completely sober.

Paragraph 66 of the judgment reads:

“… what probably happened was that the claimant got out of the other pool on the side of the fountain pool furthest away from where Mr Plazier was sitting, spoke briefly to Mr Hannigan and let him and his daughter pass. Not long after this he climbed up onto the fountain pool wall, either with a view to looking into the area where the (then non-operational) fountain was, or perhaps more likely, simply taking a short cut to where he had left his clothes, when he slipped and in the process toppled over and fell essentially head first into the children’s pool. It is possible that he stopped or slowed down to look at the view out to sea back in the direction of the reception area, as Mr Lloyd thought that he did, but it was in this general process (possibly with various ideas in his mind of what he was there for, but undoubtedly under the influence of drink) that the claimant lost his footing and fell in the manner I have described.”

At the conclusion of his judgment, the judge summarised his findings in paragraph 91. This reads:

“At the end of the day, the claimant decided to go to the fountain pool wall, for whatever reason, quite significantly affected by drink, and he has to take the risks of doing so on his own shoulders.”

On the judge’s findings, the appellant slipped on a surface which should have been but was not painted with non-slip paint. His feet were wet, and he had consumed a great deal of alcohol, but by walking where he did and being where he was when he slipped, he was not doing anything abnormal or prohibited by the rules of the complex. He did not dive into the shallow pool, nor miss his footing because he was walking too close to the edge, nor topple from it in a drunken stupor.

The claim failed on causation: hence this appeal. In summary, the judge concluded that the negligence and breach of duty established against the respondents lacked “causative potency”.

The judge highlighted a number, but not all, of the features of the evidence relevant to this conclusion. Other users of the fountain pool, and in particular the wall from which the appellant slipped, had used it safely on previous occasions: so had the appellant himself on the day of his fall for part of his journey on foot. Mr Burton suggested that this did not directly address the evidence of “slipperiness” advanced by honest, but partial, witnesses called on behalf of the appellant, and perhaps overemphasised the very short distance covered by the appellant on the wall itself immediately before he slipped. The judge commented that Mr Morgan, an expert called on behalf of the appellant, was able to walk safely on the wall when examining it some eighteen months after the accident, when the surface would have become even more slippery than it had been at the time of the accident. Mr Burton suggested that that did not perhaps fully convey Mr Morgan’s concern about the degree of stiction, the effect of which was that even when he was walking on the surface feeling relatively secure, if once his foot overcame the static friction beneath it, it would slip. Mr Morgan believed that the risk of slipping was appreciable, and that the wall surface was not safe. No engineering or other expert evidence was advanced on behalf of the respondents directly to contradict Mr Morgan.

The judge thought that it was virtually “inevitable” that, given the mixture of water and suntan oil, even the best quality of non-slip paint would not have been sufficient to make the surface of the wall completely non-slip. He was not prepared to conclude that there was any individual “particularly slippery area” from which the appellant fell. The judge reflected further on the issue of the alcohol consumed by the appellant. Notwithstanding his conclusion that the appellant was “not behaving in a reckless fashion” when he was on the surface of the wall, the judge found it difficult to resist the inference that if the appellant had not taken alcohol, he would probably not have gone on to the wall, but even if he had done so, and slipped, he would probably have been able to avoid the consequent fall. Reading the judgment as a whole, he was plainly troubled by the consumption of alcohol and the final comments in his judgment need no repetition.

At the conclusion of his judgment the judge considered a distinct possible basis of liability arising from the absence of a physical barrier to protect against a fall. This was not in issue before us. He noted that if a child had fallen in the way that the appellant fell, liability would have been established, and he “might well” have found liability if the appellant had gone on to the wall to protect a child from the risk of falling and, unburdened by alcohol, had slipped while doing so.

Mr Edward Faulks QC suggested that the judge found that the appellant was outside the class to whom the duty to provide non-slip paint was owed. It was limited to children. I doubt whether the judge reached that conclusion, but if he had, I should have disagreed with him. The risk of slipping on the wall surface and swimming pool surround was shared by all the holiday makers at the complex, adults as well as children. If the judge had concluded that the duty was owed to children, but not adults, he would have said so in terms. Rather, he approached the case as if the obligation to provide non-slip paint was intended to benefit “holiday makers”, including children, unless the adult holiday makers had somehow put themselves outside the protective duty of care. The judge’s hesitation about whether the duty extended to the appellant personally on the day of the accident was based on his concern about his consumption of alcohol, and it was this that led the judge to reflect that the appellant was not taking appropriate care for his own safety.

Mr Burton suggested a contrary criticism: an over-concentration in the judgment on alcohol consumption which is not without some justification. As it seems to me, this was indeed a holiday complex, used by holidaymakers. People on holiday relax, drink, and play about, sometimes with their children, sometimes with other adults. They are relaxed and less inhibited than they are in the normal daily grind. As they indulge themselves, an appropriate and reasonable degree of protection should be provided for them. In my view, their safety, even when inebriated, is one of the purposes of the regulations which required the provision of “anti-slip” material on the walls and edges of swimming pools. This claim may fail on causation, but not through the absence of a duty owed to the appellant.

In written and oral submissions both sides subjected the reasoning which led the judge to his conclusion, and the conclusion itself, to a close analysis. For the respondents, Mr Faulks contended that the judge applied the correct test in law, and having done so, without expressly referring to all the evidence which supported his conclusion, decided as a matter of fact that the appellant had failed to establish causation. This court was not entitled to interfere. Mr Burton, for the appellant, suggested that the judge had overlooked, and certainly had not referred to all, the material relevant to this issue, but he had in any event misdirected himself in law.

To do justice to Mr Burton’s sustained argument I must refer to the judge’s analysis of the legal issue. At paragraphs 74-76 of his judgment he said:

“74.

On the issue of causation … the claimant has to prove, on the balance of probabilities, that but for the absence of proper non-slip paint he would not have slipped as I have found that he did. The other way of putting it … is that he must prove, on the balance of probabilities, that the absence of proper non-slip paint caused or materially contributed to his slip and his subsequent fall. However, in my judgment, if a slip is as likely to have occurred irrespective of the absence of a proprietary brand of non-slip paint as it would have had such paint been provided, or the evidence does not permit of a conclusion on the balance of probabilities, then the necessary evidential hurdle has not been surmounted and the “but for” test has not been passed.

75.

If, … the law applicable to a case such as this was that a breach of duty that increased the risk of a claimant sustaining injury in a particular way is to be taken to have caused or materially contributed to an injury sustained by the claimant within the area of that increased risk, then, subject to the duty being owed to him, the claimant would certainly have the makings of a case on that issue. He slipped where the surface carried an increased risk of doing so compared with the risk on the surface that ought to have been provided. However, that approach to causation is, as the law now stands, limited to certain specific situations and notwithstanding … very well argued written submissions, I do not consider that it applies to this one: see generally Fairchild v Glenhaven Funeral Services Ltd & ors [20003] 1 AC 32. But there does seem to me to be a more fundamental difficulty in applying such an approach to this case in any event.

76.

I can illustrate the difficulty of applying the “material contribution” approach to a case such as this in the following way. I have held that the risk of slipping on the surface of the wall was greater than it should have been. Since an increased risk is “material” if the increase is “more than minimal”, it would follow that the increased risk here was “material”. However I have no way of concluding what the true magnitude of that increased risk was in this case. If the evidence had established that people were habitually slipping on its surface, I might have been able to conclude that the increased risk was so significant that it must have contributed materially to the claimant’s slip and that, but for that material contribution, he would not have slipped at all. However the evidence does not establish that: people did walk on it safely as I have observed … indeed so did the claimant for some part of his journey. While the role that percentages can play in this context is debatable, even, say, a 10-15% increased risk would be “material” within the definition of that word mentioned above. But even if I were satisfied that an increased risk of that order existed here, I would find it impossible to conclude that but for it the claimant’s slip would not have occurred. I am, however, unable on the evidence to say what magnitude of increased risk arose here. Some objective assessment of the “slipperiness” of one surface as against the other might have helped, but since the inevitable conclusion would have been that no surface around the swimming pool is likely to have been risk free so far as slipping is concerned, it may be that such evidence would not have led me much further in the enquiry. However, I can only express my conclusion, as I have, in a very general way by making the comparison between what was provided (which was not the best quality non-slip paint, but which must have had some effect otherwise people would have been slipping all the time) and what was not (the best quality non-slip paint, which could not of itself guarantee that no-one would ever slip).”

Mr Burton submitted that these passages from the judgment demonstrate the flaws in the judge’s approach to the issue of causation. He misapplied the “but for” principle, and failed to appreciate the true ambit of the concept of material contribution to damage, indeed, according to Mr Burton, he confused it with what Mr Burton suggested was the distinct concept, material contribution to the risk of damage. It was, according to the argument, not necessary for the appellant to demonstrate that the safety feature provided by the non-slip paint would have prevented or avoided his accident. If the use of non-slip paint was likely to have made a difference, its omission should be treated as having made a material contribution to the accident. That was sufficient to establish liability. The appellant was not required to establish that the slip was caused by the absence of non-slip paint rather than his own careless movements, or lack of balance, or the degree of his inebriation.

Mr Burton developed his submission by identifying two categories of case in which what he described as the “doctrine” of material contribution might apply to establish causation in negligence or for breach of statutory duty. The first was material contribution to damage, which applied where more than one cause of the harm complained of was present, and the tortious cause, on the balance of probabilities, either made or was capable of making a material contribution to that harm. He relied on Bonnington Castings v Wardlaw [1956] AC 613 and Wilsher v Essex Health Authority [1998] AC 1074 as examples of and providing support for this principle. Material contribution to risk arose, exceptionally, where as a matter of policy, the court allowed causation to be proved (perhaps more accurately, found that causation was proved) even though due to the limits of current knowledge the evidence did not permit a factual inference that the increase in risk materially contributed to the damage. He identified McGhee v National Coal Board [1973] 1 WLR 1, Fitzgerald v Lane [1987] 3 WLR 249 and Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 as examples of and sustaining this doctrine in an exceptional case.

Mr Burton accepted that the precise ambit of the two categories had yet to be fully analysed, but he suggested that there was no reason in principle why cases in the first category should not apply to all accidents in which there were competing causes, some of which were tortious, and some of which were not. This therefore could apply where there were multiple or single parties, multiple or single agents, provided the court could be satisfied that the negligence complained of made a material contribution to the damage, or where it was legitimate to draw an inference to that effect. Whenever cases in either category arose, the claimant was not required to show that “but for” the negligence he would not have sustained the harm. All that was required of him was to show that the negligence made a contribution which was more than minimal.

These were very wide-ranging submissions. Perhaps it would be as well at the outset to notice that Mr Burton was not inclined to identify any distinction between the claim for negligence or breach of duty or breach by the respondent of the contract with the appellant. In effect, any claim for breach of contract is subsumed in the claim that the claimant’s catastrophic injuries resulted from negligence for which the respondents were responsible. The only significant issue in this appeal was causation.

As a matter of first principle, the appellant is entitled to recover damages for personal injuries caused by the respondents’ negligence: no more, no less. Lord Bingham of Cornhill encapsulated this principle in his dissenting speech in Chester v Afshar [2005] 1 AC 134. At 142, where he observed:

“It is trite law that damage is the gist of the action in the tort of negligence. … A claimant is entitled to be compensated for the damage which the negligence of another has caused to him or her. A defendant is bound to compensate the claimant for the damage which his or her negligence has caused the claimant. But the corollaries are also true: a claimant is not entitled to be compensated, and a defendant is not bound to compensate the claimant, for damage not caused by the negligence complained of.”

Trite law needs no reinforcement by an anxious parade of supporting authority. Nevertheless, given the judge’s express reference to the “but for” test, perhaps reference to the broad approach to this issue identified by Lord Nicholls of Birkenhead in Fairchild will be forgiven. He said:

“In the normal way, in order to recover damages for negligence, a plaintiff must prove that but for the defendant’s wrongful conduct he would not have sustained the harm or loss in question. He must establish at least this degree of causal connection between his damage and the defendant’s conduct before the defendant will be held responsible for the damage. Exceptionally this is not so. …”

In effect, Mr Burton submitted that this is such an exceptional case to which, again in Lord Nicholl’s words later in his speech, “a lesser degree of causal connection” sufficed.

I should record at the outset that, after considering Mr Burton’s submissions, I have concluded that what I have described as the first principle of causation remains the applicable starting and the finishing point in this case. Nevertheless in deference to his argument, I must consider his analysis of the authorities.

This began with Bonnington Castings Ltd v Wardlaw. An employee claimed that he had contracted pneumoconiosis as a result of inhaling silica dust in the course of his employment. The dust came from two sources, and there was a breach of duty in relation to only one of them. The critical question was whether the dust inhaled from that source materially contributed to the disease. In a passage echoed in the judgment presently under consideration, Lord Reid observed:

“What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle yet too small to be material.”

Mr Burton drew particular attention to the observation of Lord Rodger of Earlsferry in Fairchild, commenting on Bonnington, that it was “enough that the defendant’s wrongful act materially contributed to the claimant’s injury” and that accordingly “the law is not applying the causa sine qua non or “but for” test of causation”.

In McGhee v National Coal Board the House of Lords was concerned with another problem of fault exposure to unacceptable conditions at work over a lengthy period. In consequence Mr McGhee developed dermatitis. His case was that the provision of a shower would have reduced but not eliminated the risk of dermatitis, which might have developed in any event. Lord Reid commented:

“From a broad and practical viewpoint I can see no substantial difference between saying that what the defendant did materially increased the risk of injury to the pursuer and in saying that what the defendant did made a material contribution to his injury.”

Lord Simon regarded it as unreal to draw a sharp distinction between the breach of duty and causation. Lord Salmon, too, suggested that the distinction between materially increasing the risk of contracting the disease and having materially contributed to causing the disease was “far too unreal to be recognised by the common law”. In short, not altogether helpfully to Mr Burton’s present submissions, together with Lord Simon and Lord Reid, in the context then receiving attention, he examined and rejected the purported distinction.

Mr Burton drew attention to the text in Munkman on Employer’s Liability (13th edition, 2001) summarising the test in the context of the liability of employers for accidents at work. The proposition he relies on is summarised in this passage:

“The courts are prepared to infer that increased exposure to risk has contributed to, and hence caused, the accident. Examples provided to sustain this proposition include Lee v Nursery [1945] 1 All ER 387; Cork v Kirby [1952] 2 All ER 402; McClymont v Glascow [1971] SLT 45.”

Mr Burton referred specifically to the first two decisions. In my view, however, both decisions must now be approached with considerable caution. Bonnington made plain that the normal burden of proof was not to be shifted. Referring to this line of authority, Lord Reid agreed that a court should not be “astute to find against any party”, but should apply the ordinary standards. Lord Tucker emphasised that the question whether the plaintiff had proved that the injury complained of had been caused by breach of duty depended on the particular facts and the proper inferences to be drawn from them. The same principle was described by Lord Keith of Avonholme as “elementary”. To the extent that in McGhee, Lord Wilberforce suggested a different approach to the burden of proof, his views did not find favour when they were considered later in the House of Lords in Wilsher and Fairchild.

If further emphasis were needed, it is perhaps to be found in the rejection by the House of Lords, again in Wilsher and Fairchild, of the principle, as Mustill LJ endeavoured to identify it in the Court of Appeal in Wilsher v Essex Area Health Authority [1987] QB 730. He suggested:

“If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue; and if the two parties stand in such a relationship that one party owes a duty not to conduct himself in that way; and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained.”

Sir Nicholas Browne-Wilkinson VC disagreed. Wilsher was “wholly different” from McGhee. The context was clinical negligence. There were a number of possible causes for the development of retrolental fibroplasias, which resulted in the blindness of a premature baby. The defendant failed to take reasonable precautions to reduce excess oxygen. That was one possible cause of the plaintiff’s condition, constituting a breach of duty by the defendant which could have caused it. However, although the breach increased the risk that this plaintiff’s unhappy condition might develop, liability was not established. As the Vice Chancellor explained, in McGhee brick dust was the only explanation for the onset of dermatitis, and the failure “to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust … I can see the common sense, if not the logic, of holding that in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis.” On the other hand, “a failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury”. In the House of the Lords, the reasoning of the Vice Chancellor was adopted, and that of Mustill LJ rejected. In Fairchild, that rejection was endorsed. Lord Bingham supported the reasoning of the Vice Chancellor. Lord Hoffman rejected the broad principle identified by Mustill LJ. Lord Rodger of Earlsferry stated in terms that this approach would result “in obvious injustice to the defendants.”

In the House of Lords in Wilsher v Essex Area Health Authority the only opinion was given by Lord Bridge of Harwich, with whom the other members of the House agreed. Lord Bridge commented that the decision in McGhee did not support any attempt “to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation” after a breach of duty had been established. This particular observation is no longer treated as authoritative (see per Lord Bingham of Cornhill in Fairchild at paragraph 22; per Lord Nicholls at paragraph 45; per Lord Hoffmann at paragraph 70; per Lord Rodger of Earlsferry at paragraph 150), but its rejection does not advance Mr Burton’s argument. The correctness of the decision in McGhee – that the claim for damages failed, notwithstanding that the defendant health authority’s breach of duty increased the risk of injury to the plaintiff – was not doubted.

Fitzgerald v Lane was an action for personal injuries by a plaintiff who was struck by two vehicles. The first threw him onto its bonnet, from whence he was propelled into the road, where another car struck him. Four possible causes of his tetraplegia were established. For present purposes it is sufficient only to notice that this Court was plainly influenced by the decision of the majority of the Court of Appeal in the then recently decided Wilsher, and in particular the principle identified by Mustill LJ, now deprived of authority. As Nourse LJ put it:

“… The majority have now shown us that the decision in the McGhee case established a principle whose application is wide enough to bridge the evidential gap in this case as comprehensively as it did in the other two. The decision of the majority now binds this Court … a benevolent principle smiles on these factual uncertainties and melts them all away.”

It is unnecessary to comment on the correctness, or otherwise, of the eventual decision in Fitzgerald, but sufficient for present purposes to highlight that the apparent benevolence of the principle has not enabled its further extension beyond the limitations laid down by the House of Lords in Wilsher, and in Fairchild.

The litigation in Fairchild arose from the development of industrial disease, mesothelioma, following fault exposure to asbestos fibres at work. The disease may be caused by a single fibre, a few fibres, or many fibres, and once malignancy has developed, the condition is not exacerbated by further exposure. The problem for the plaintiffs was that they had worked for a number of different employers at different sites where they had been negligently exposed to asbestos fibres. The Court of Appeal concluded that causation was not established. Although fault exposure to a fibre or fibres occurred at their places of employment, the plaintiffs could not establish that the fibres which caused the onset of mesothelioma resulted from any particular breach of duty by any particular employee. The court was therefore unable to close the “evidential gap”. The House of Lords addressed the problem whether, in the special circumstances, the conventional approach to causation was appropriate, and concluded that the interests of justice required that the normal rules of causation should be relaxed and modified. It was not necessary for the claimant to establish that the disease from which he suffered would not have occurred “but for” an individual defendant’s breach of duty. “The ordinary approach to proof of causation” was varied (per Lord Bingham). It was one of those cases where “a lesser degree of causal connection” sufficed (per Lord Nicholls). When medical science could not yet establish which particular moment of fault exposure caused the claimant’s condition, it was open to the House of Lords “to formulate a different causal requirement in this class of case” (per Lord Hoffmann). The circumstances in which it may be appropriate to modify or extend the conventional approach to causation were identified by Lord Bingham, Lord Hoffmann and Lord Rodger, but in ways which were not identical. Although Fairchild undoubtedly represents a development in the conventional principles relating to causation, the reasoning does not undermine but rather reinforces what Lord Bingham himself was later to identify in Chester, in the passage quoted in paragraph 30, as “trite law”, at any rate in cases of personal injury consequent on an individual, specific occasion of negligence for which (discounting situations like vicarious liability) a single party was responsible.

I must return to Chester, to observe that the conclusion of the majority, favouring a narrow development of causation principles to enable the court to uphold the right of a patient to be properly informed by her doctor of the possible risks of agreeing to a surgical procedure, did not dilute the essential principle. (See per Lord Steyn at paragraph 23; per Lord Hope at paragraph 85; per Lord Walker at paragraph 101, applying Fairchild.) What happened, in essence, is that the approach to causation was modified to emphasise a wider principle. This was a policy decision with no application to cases like this.

The authorities to which Mr Burton drew attention establish that the “but for” test, applied in its full rigour, should no longer be treated as a single, invariable test applicable to causation issues, in whatever circumstances they may arise. The question in the present appeal is whether Fairchild, and the series of decisions developing the law of which it represented the culmination (subject of course to subsequent developments) have any application here. In my judgment, in agreement with the judge, they do not. On any view, it would be absurd to describe this unfortunate accident as exceptional. Accidents like this happen all too frequently, and even though negligence by an identified tortfeasor is established, the question still remains whether the negligence caused the claimant’s injuries. A successful claim for damages for personal injuries consequent on negligence or breach of duty requires the court to be satisfied that the injuries were indeed consequent on the defendant’s negligence. Even if it may have some application in different situations, the distinction sought to be drawn by Mr Burton between material contribution to damage and material contribution to the risk of damage has no application to cases where the claimant’s injuries arose from a single incident. In this Court any modification of the principles relating to causation in the context of claims for damages for personal injury must be approached with the greatest caution. Certainly, however the law of causation may develop, save in the House of Lords, it cannot develop in a way which revives or is dependent on the approach adopted by Mustill LJ in Wilsher, and subsequently twice rejected in the House of Lords. That route is closed. In reality, for the purposes of cases like this, trite law is unchanged.

The breadth of Mr Burton’s submission may have distracted attention from a single but potent consideration. In the context of causation, the two words “but for” are shorthand. They encapsulate a principle understood by lawyers, but applied literally, or as if the two words embody the entire principle, the words can mislead. They may convey the impression that the claimant’s claim for damages for personal injuries must fail unless he can prove that the defendant’s negligence was the only, or the single, or even, chronologically the last cause of his injuries. The authorities demonstrate that such an impression would be incorrect. The claimant is required to establish a causal link between the negligence of the defendant and his injuries, or, in short, that his injuries were indeed consequent on the negligence. Although, on its own it is not enough for him to show that the defendant created an increased risk of injury, the necessary causal link would be established if, as a matter of inference from the evidence, the defendant’s negligence made a material contribution to the claimant’s injuries. As Lord Rodger explained and demonstrated in Fairchild, there was “nothing new” in Lord Reid’s comment in Bonnington that what was required was for the plaintiff to make it appear at least “that, on a balance of probabilities, a breach of duty caused, or materially contributed to, his injury”. Lord Rodger observed that there was ample authority for the proposition in English and Scots law, both before and after Lord Reid had, in effect, treated it as so elementary that it required no support from authority.

This, as it seems to me, was precisely reflected in the approach taken by the judge. In paragraph 74, he referred to the “but for” principle, but accepted, alternatively, that it would be sufficient for the claimant to prove “on the balance of probabilities, that the absence of proper non-slip paint caused or materially contributed to his slip and subsequent fall”. In short, the judge correctly identified the appropriate principle, and rightly rejected the suggestion made to him that Fairchild had any application to the present case. Thereafter he examined what he described as a fundamental difficulty arising from the argument that the appellant’s claim should succeed because he had established that the surface of the wall carried an increased risk of a slip when compared with the risk of slipping if the wall had been painted with non-slip paint. However as he had already correctly directed himself in law, for the reasons I have endeavoured to explain, it was not strictly necessary for him to have decided this issue.

The single question, therefore, is whether any proper basis for interfering with the judge’s factual findings on causation has been shown. This has not been an easy decision, and I shall not disguise that as I have reflected on it, my view of the case has varied. This hesitation has been reinforced by my concern about the possible impact of the judge’s erroneous failure to recognise that the application of non-slip paint was intended to protect the inebriated as well as the sober.

Mr Faulks’s submissions on the facts had the attraction of simplicity. The judge remained unpersuaded that the claimant’s slip was caused, or materially contributed to, by the absence of non-slip paint on the surface of the wall. Non-slip paint would have made the surface less slippery, but not non-slippery, nor removed altogether the risk of a slip by someone walking on the top of the wall with wet feet. So the risk of a slip was inevitable, and the fact that the claimant slipped did not of itself demonstrate that the slip resulted from the absence of non-slip paint. There was therefore no sufficient evidence to establish a causal link between the negligent absence of non-slip paint and the appellant’s subsequent fall. He reminded us of the need to respect the factual conclusion reached by the judge, a consideration of particular force here, where the judgment under consideration has examined the issues with great care.

This is persuasive reasoning. The practical reality of the case is that the judge was not satisfied on the balance of probabilities that the appellant’s accident would have been avoided if non-slip paint had been used on the surface of the wall. In short, the risk represented by the absence of non-slip paint was just that, an increased risk which in his judgment, as a matter of fact, did not cause or materially contribute to the appellant’s accident. These are findings with which this Court should not interfere.

For these reasons, this appeal must be dismissed.

I agree that the appeal should be dismissed for the reasons given by the President. This is a finely balanced case, and I have every sympathy for the appellant's plight, but I am satisfied that the judge directed himself correctly in law and that his factual findings on causation were properly open to him on the evidence.

I, too, agree that the appeal should be dismissed for the reasons given by the President. Much as one may sympathise with the appellant, this appeal is, in essence, an attack upon the judge's findings of fact which, as my Lords have observed, were properly open to him.