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Published: Fri, 02 Feb 2018
Notion of Corrective Justice
It will be determined whether the notion of corrective justice has been undermined by a desire to secure compensation for innocent victims in relation to cases concerning causation in negligence where there is scientific uncertainty. In doing so, recent case law and legislative developments will be assessed in order to determine the adequacy of this view followed by an assessment of academic opinion. Once all of the relevant information has been gathered an appropriate conclusion will be drawn showing that corrective justice is undermined to a certain degree since defendants’ who have not caused harm may still be found liable. Nevertheless, it appears that this is necessary in ensuring on the one hand that wrongdoers do not escape liability and on the other that innocent victims are redressed for any harm suffered.
There has been much debate surrounding the issue of causation in negligence in cases of scientific uncertainty which is especially the case when it comes to those cases concerning mesothelioma. As such, it has been argued that the notion of corrective justice has been undermined by a desire to secure compensation for innocent victims which is largely the result of the decision that was found in Fairchild v Glenhaven Funeral Services Ltd.  Here, the rule adopted in McGhee v National Coal Board  was extended and it was found that liability would be imposed if it could be shown that the defendant had materially increased the risk of harm occurring. This undoubtedly deviates away from the original ‘but for’ test that was used to establish causation and it is arguable whether justice is being achieved in consequence of this. Accordingly, it was put forward by Feeney et al; that: “Amendments to the “but for” test without considering the concept of indivisibility and apportionment may have provided justice for these claimants, but omitted to consider the defendants’ position either from a policy or pragmatic perspective.”  In effect, it is apparent that holding defendant liable for harm in such instances does not allow fairness to be attained and it therefore seems that a balance between the rights of claimants’ and the rights of defendants’ ought to be effectuated. Whether this can ever be achieved is arguable but it seems that at present corrective justice is being undermined which is absurd.
Regardless of this, it was made clear in the latter case of Chester v Afshar  that “in exceptional circumstances, rules of causation can be modified on policy grounds.” Again, this further signifies a move away from the original ‘but for’ test and demonstrates that liability can be imposed even if the principles in negligence fail to be satisfied. This evidentially allows strict liability to be enforced which is not what the original negligence principles intended, yet it appears that this is necessary in order to ensure that liability isn’t escaped by defendants who have undoubtedly caused harm to the claimant. Consequently, it has been argued by Willis and Brown in light of this that “we now have a situation where a failure to warn or advise upon all the risks of a course of action might or even must give rise to a form of strict liability, whether or not the advice would have been heeded.”  This is largely due to the fact that the circumstances of the Chester case are not easily distinguishable from other cases so as to make them special which thereby illustrates that the same principles would have to apply in the majority of instances since it would be very difficult to determine whether the ‘but for’ test should be applied or not. This decision was nonetheless reviewed in Paul Davidson Taylor (A Firm) v White  and it was held that; “none of the long-established authorities on causation was overruled by the House of Lords and it would not, in my judgment, be right for this court to apply Chester in preference to those traditional principles.”
Effectively, it became apparent from this decision that the ‘but for’ test was still being enforced and that the corrective justice was being achieved since it would merely be dependent upon the facts of the case as to whether the original negligence principles would be departed from. This case clearly reaffirmed the ‘but for’ test and enunciated that policy grounds would not allow a diversion of the test in all instances and that such a departure would only be ascertained in exceptional circumstances. Conversely, however, it is felt that because of the inconsistency that arises within the case law, the causation principles are in a state of disarray and as argued by Foster “they have pushed the law of tort into wholly uncharted waters. Goodness knows where it will end up.”  As such, it appears that causation will be capable of being proved in many cases regardless of whether the causation principles have been established or not. Whether this goes against the principles of corrective justice is likely and it is evident that greater clarification within this area of the law is imperative. Hence, it has been pointed out by Miller in view of the judicial decisions surrounding this area of the law that; “English common law has, in different ways, eased the burden on claimants who can ‘ prove’ breach of duty but, through various forms of uncertainty, not causation.”  Whether this new approach prevents unfairness on the claimant’s part is likely, yet it appears that the interests of claimants are being ascertained at the expense of the defendant’s rights.
This clearly allows injustice to ensue and as noted by Gore; “causation in tort will remain controversial as a matter of legal principle and not just evidence.”  Not all agree that the Fairchild approach is nonetheless unjust and instead believe that the decision is welcoming since it enables wrongdoers to suffer the consequences of their actions when harm has been caused. This has been certified by Coley when he argued that; “the result in Fairchild is just and most will consider this a good decision.”  Nevertheless, he went on to further add that; “the decision will answer the most important, but not all, of your questions. But if you are interested in wider principles of causation in cases involving multifactorial causation you will be disappointed by the difficulty encountered in deriving any principles of general application from the decision.”  Essentially, this clearly signifies that although the decision that was produced was in fact a good decision, the application of the negligence principles has been left in an ambiguous state and it will be very difficult for the courts to determine whether the original causation test ought to be used in any given case. Still, despite this, it was held in the recent case of Barker v Corus (UK) Plc  that the attribution of liability relative to the degree of contribution of harms being contracted would smooth the roughness of the justice since wrongdoers would still be found liable for harm, yet this would only be for the harm caused solely by the defendant. Therefore, it seemed that the “proportionate liability” concept would discredit any assertions of injustice.
Nevertheless, this decision was soon criticised by those who felt that claimants would not be adequately compensated for harm caused and so section 3 of the Compensation Act 2006 attempts to reverse this decision by making all defendants jointly and severally liable for any harm caused to the claimant. This is however justifiable in asbestos cases because of the scientific evidence that has been provided making it clear that the disease may be contracted by a single fibre and so it would be very difficult to determine who actually caused the harm. Yet, it is clear that those who have not caused harm will still be found liable if there is a chance that they may have which is severely unjust, yet as expressed by Regan; “the courts have shown an increasingly flexible approach to questions of causation in clinical negligence actions and they have imported concepts from cases of industrial disease.”  Arguably, the “material contribution” test will only be applied in those cases where it would be very difficult to establish who actually caused harm to the claimant. This approach appears to remove the possibility of defendants escaping liability whilst ensuring that claimants are redressed for harm suffered. Essentially, it seems that the ‘but for’ test will only be used in cases not concerning the contraction of asbestos and as has been pointed out; “the correct test on causation was whether or not the tortious exposure had materially increased the risk of harm and a defendant was not entitled to require the claimant to prove causation by reference to a twofold increase in risk.” 
Overall, it seems that the notion of corrective justice is undermined by a desire to secure compensation for innocent victims to a certain degree. This is evidenced by the fact that defendants who are likely to have caused harm will be jointly and severally liable to claimants regardless of whether they have actually caused harm or not. This is because; it has been scientifically proven that the contraction of mesothelioma can occur from a single fibre which makes it almost impossible to determine who has caused the harm. This appears somewhat absurd, nonetheless, since innocent persons will be found liable in the majority of instances which is wholly undesirable and unjust. Yet, this has been considered necessary in the majority of cases in order to ensure that wrongdoers do not escape liability and that victims can be compensated. Whether this approach is satisfactory remains a debatable subject and it is clear that the rights of innocent victims are being certified at the expense of defendants rights. In effect, greater certainty and clarity is needed within this area of the law yet it is doubtful that this will ever be achieved given the complexity of establishing the cause of harm in cases concerning asbestos.
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