Material Contribution Test

(I) Introduction:
In the judgements of McGhee and Fairchild, the distinction between factual causation and legal causation has been obscured. It is argued that the material contribution test has altered the path of the law. I believe this to be correct. The material contribution test for legal causation has become a tool that can be adapted to allow the plaintiff to recover even when the sine qua non rule cannot be applied and when cause-in-fact fails to be established.

Usually to establish causation, the cause of the injury must be identified by applying the “but for” test. The material contribution test is applied when there are multiple causes and it cannot be proved as a matter of fact what was the single cause of the injury. The main

On one occasion he worked in a brick kiln, but ceased working here after four and a half days due to his development of dermatitis. The defendant was in breach of duty, in that no showering or washing facilities were provided for employees. This meant that the plaintiff had to cycle home after working in very hot and dusty conditions without showering and removing the dust from his body. The plaintiff was unable to prove that the absence of showering facilities caused his dermatitis. It was found on the basis of medical evidence that the provision of showers would have reduced the chances of Mr McGhee contracting the disease but could not prove with certainty that it would have prevented it all together. Although the defendant was found to be negligent, the trial judge held that the plaintiff had not succeeded in proving that this negligence had caused his disease or materially contributed to it. The Lord Ordinary (Lord Kissen)

The plaintiff contracted mesothelioma as a result of wrongful exposure to asbestos dust during different periods of employment with various employers. While the inhalation of a single asbestos fibre could cause this disease, continuous exposure could also affect the risk of contracting it. The plaintiff was unable to demonstrate which of his employers had exposed him to the fatal fibre which caused his cancer. It was impossible for him to prove that his mesothelioma occurred as a result of his inhalation of asbestos during employment with his first employer, his second employer or during his employment by the two taken together. It was held that the defendants’ breach of duty in exposing the plaintiff to asbestos dust contributed to the development of the disease and he succeeded in recovering damages. In this case under specific conditions, the proof of causation required for the defendants to be liable was satisfied in proving that there was a material increase in the risk of the contraction of mesothelioma. Exposures by both employers contributed substantially to the risk. Unlike in McGhee where there was only one possible cause of the dermatitis (brick dust), there was two possible employers who are liable. Based on McGhee, Lord Hoffman agreed that as the case reflected the necessary features outlined by Lord Bingham, that it was correct for the House