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Where the court cannot ascertain which act was the

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Where the court cannot ascertain which act was the actual cause, they can implement s 51(2). Fairchild v Glenhaven Funeral Homes: Fairchild involved 3 cases being heard together. All 3 cases involve someone who had developed an asbestos related disease and all developed disease after being exposed to asbestos in their workplace. Evidence suggested that workplace exposure was only time being exposed to asbestos. Only place they could have been exposed. Problem was exposed by more than one employer. Impossible to tell which Workplace they had developed disease; therefore ‘but for’ test was not able to be established here. On the facts of this cause; increased risk enough. At pains however to emphasise that they were not laying down a rule; increased risk WILL not always establish causation. All they were saying on these particular facts they are making an exception. Effectively they held that both employers were liable, concern for employers suffering indeterminate liability was outweighed by the need to compensate the employee. (iii) INCREASED RISK AS A CAUSE (only when unsure of cause) Court can also modify the test where the court cannot be sure the Defendant’s act caused the harm but it is said that D’s breach increased the risk of P suffering material harm No clear authority in Australia (see Chappel v Hart)
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McGee v National Coal Board DERMATITIS, NO SHOWERS Facts: P worked in factory cleaning kilns, employer did not provide showers, was covered in brick dust, developed dermatits. Issue: It is not certain whether providing washing facilities would have actually stopped the development of dermatitis- but it was clear that lack of shower facilities materially increased the risk. Held: It was enough for factual causation that D’s act materially increased the risk that did in fact eventuate. (However only prima facie; it is still open for D to show did not cause harm; also said in Chappel v Hart) Chappel v Hart THROAT SURGERY Facts: P required throat surgery, before performing operation failed to warn P there was a very small risk her voice could be damaged due to the operation despite asking him about risks of operation. This was not elective surgery; P would have had to have operation sooner or later. Even if can establish bod she would have trouble showing causation. Applying ‘but for’ test consider; D could argue she needed surgery anyway. P however had response to argument, had she been warned would have gone to the very best expert in the area and got them to carry out the operation. P argued an increase risk here by failing to warn her of possible harm increased risk she would suffer damage to voice because she was unable to go to best in the field. Held: FAILURE TO WARN INCREASED RISK: had she gone to a better
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Where the court cannot ascertain which act was the actual...

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