Usual “but for” rule of causation should apply to claim by employee; claim arising out of bacterial infection fails

Ms Hull became ill with campylobacter enteritis shortly after starting work as a turkey plucker. She alleged that her employers, Mr and Mrs Sanderson had failed to protect her from the risks of infection which were inherent in handling dead poultry. At first instance in a draft judgment the Recorder found the Sandersons negligent and in breach of duty for failing to provide suitable gloves, tell Ms Hull to change them frequently and warn her of the risks of exposure and the precautions that should be taken. However, on the issue of causation he said that he could not say on the balance of probabilities that she had become infected as a result of the breach of duty. Both Counsel made further written submissions and the Recorder then revised his judgment in favour of Ms Hull on the basis that the case fell within the principle in Fairchild v Glenhaven Funeral Services [2003], where it was held sufficient to show that the employer’s breach of duty had materially increased the risk of injury.  

Held: The Court of Appeal held that it was not impossible for Ms Hull to prove causation on the usual “but for” basis but the Recorder had failed to make findings of fact which would have allowed him to make a decision on this basis. The Recorder was wrong to hold that the case fell within the Fairchild exception. As no request had been made to remit the case to the Recorder for him to make the necessary findings of fact the appeal was allowed and the claim failed.  

Comment: This is another example of a case where the Court of Appeal has rejected an attempt by a Claimant to move away from the usual “but for” test for causation and adopt instead the much more favourable test set out in Fairchild. It is positive for Defendants and insurers that the Court of Appeal has rejected this attempt and reinforced that the “but for” test should be used in all but a very limited category of cases.  

Nonetheless it is clear from the judgment of the Court of Appeal that there was in their view scope for the claim to have succeeded. However, in the circumstances it was not possible for the issue of causation to be reopened.