Chapter 7 Guidance on answering the end-of-chapter problem questions
It can be assumed that smoking on a petrol station forecourt represents a failure to take care by Diane. The question is whether this has caused damage to James. The but-for test would be satisfied (but for the failure in care, the damage would not have occurred): see Barnett v Chelsea & Kensington Hospital. However, Diane might argue that the strong gust of wind was a novus act, breaking the chain of causation. It appears that a natural event can do that only if it is wholly unexpected. Assuming no novus actus, the claimant would have little difficulty in proving that the type of damage which occurred was of a kind that was foreseeable in nature: Wagon Mound. As to Diane’s cancer, there are two relevant factors: the exposure to asbestos and the smoking. Medical science cannot tell which caused the lung cancer (an indivisible disease like mesothelioma). In the circumstances, the but for test could not be satisfied. The question is whether the Fairchild exception would apply. Although it could be argued that the asbestos and smoke inhalation were different agents, Court of Appeal authority now allows application of the Fairchild principle here: Heneghan v Manchester Dry Docks. This means that the fact that exposure to asbestos increased the risk of lung disease is enough. The defendant will be liable in proportion to its responsibility in causing the injury – to the extent that this can be worked out by looking at length and intensity of exposure etc: Barker v Corus UK. The injury caused at the pub could be classified either as a break in the chain of causation or as too remote because not reasonably foreseeable.