1. See eg Lord Denning MR in Spartan Steel v Martin [1973] 1 QB 27 at 37.

2. We mention this only to beg for absolution in advance.

3. Lord Asquith in Stapley v Gypsum Mines [1953] AC 663 at 685 et seq.

4. Haldane LC in Canadian National SS v Velin Shipping (1927) 138 LT 369.

5. In Clerk & Lindsell (15th edn), 11–38.

6. Eg Smith v Leech Brain [1962] 2 QB 405.

7. Assuming there was not joint activity on the part of the defendants. Cf Summers v Tice infra, n 15.

8. [1970] AC 467.

9. Eg Clerk & Lindsell (15th edn), 11–41.

10. Eg Jobling v Associated Dairies (1980) 3 WLR 704.

11. Eg Clerk & Lindsell (15th edn), 11–35.

12. Eg in contributory negligence.

13. See nn 4, 5, 9, supra.

14. Eg Metropolitan Rly Co v Jackson (1877) 3 App Cas 193. Cf Wakelin v London & South Western Rly Co (1886) 12 App Cas 41.

15. Eg Summers v Tice 33 Cal 2d 80, 199 P 2d 1 (1980) Cal S Ct Cf Oliver v Mills 144 Mo 852 (1926) and Cook v Lewis (1952) 1 DLR 1.

16. Causation in the Law (Oxford, 1959).

17. Ibid.

18. G Williams [1961] CLJ 62; G Calabresi 43 v Chi L Rev 69 (1975).

19. ‘Historical cause’ and ‘acuarial cause’ will be familiar to those who know David Papineau's book For Science in the Social Sciences. An ‘accused event’ is a lawyer's refinement.

20. Eg Hart and Honore and Williams, supra.

21. See eg Mazeaud and Mazeaud, Traité de in Responsabilité Civile, p 332 ff.

22. See nn 3 & 4, supra.

23. NB One might change the definition of the accused event to ‘the negligence of D₁ or D₂’ but a ‘joint enterprise’ was excluded from consideration since it would have implicated P as well.

24. Supra.

25. (1973) I WLR 1.

26. 163 Cal Rptr 132 607 Pac 2d 924 (1980) (Cal S Ct).

27. Ibid.

28. Eg 68 LQR 324.

29. [1962] 1 WLR 295.

30. (1980) SJ 17; The Times, 1 February 1980. Cf Robinson v PO [1971] 1 QB 418.

31. 132 NLJ 882.

32. The gas board were also a party since it was alleged that they negligently failed to provide a safe gas meter – one of the causes of P's injury was a gas explosion and it could have been prevented if the gas board had installed different equipment. The complaint failed on the facts. Cf Hartley v BRB 125 SJ 169.

33. Cf King, ‘Causation and Valuation’, 90 Yale LJ 1353 (1981).

34. Ibid.

35. Infra p 21.

36. Op cit.

37. 191 Pa 345, 43 A 240 (1899) (Penn S Ct)

38. Even if they are not, the law sometimes imposes stricter liability under ‘public nuisance’. Clerk & Lindsell 23–70. Cf Harty v Ville de Analons-sur-Marne where the Cour d'Appel of Paris held that, for these purposes, a tree is a building.

39. Cf Bolton v Stone [1951] AC 830.

40. 132 NLJ 8879.

41. Assuming that damages for making matters worse than a non-negligent failure would have been taken into account.

42. A third reason for the judges' view that estimating ‘actuarial cause’ is not an exact science may well be that they are sceptical about the effectiveness of deterrents in the civil law, especially general ones. Research suggests that deterrents work best when they are in the form of particular orders addressed to particular people in circumstances of good communications and swift retribution, and worse when they are vague, little known and only sporadically enforced. One might wonder into which category the opinions of the courts of law in torts cases would fall. Insurance systems might overcome some of the problems of communication of decisions beyond the immediate parties through the market - but this would not be without distortions and only applies to insurable risks. If torts judgments were not insurable one might still have doubts about their effectiveness as deterrents, given our experience with the already noninsurable criminal fines. Howarth ‘Deterrents and the Law of Remedies’ (unpublished. 1982).

43. Note that this is not the same question as that of proof - but see Sindell, infra.

44. Supra. note 15.

45. [1961] AC 388 (PC).

46. We follow Calabresi in taking the foreseeability of the type of plaintiff as a separate question.

47. Cf Anns v Merton BC [1978], and Dias in Clerk & Lindsell, 11–78.

48. Cf note 47 and Palsgraf v LIRR 248 NY 339 (1928).

49. Op cit, note 18.

50. Professor Calabresi points out, of course, that the pattern is developed more by the reaction of insurance companies to the results of litigation rather than through the judges themselves. This leaves open the question of whether the insurance companies could not do this equally well in a non-judicial system of compensation. (Personal communication).

51. Supra, note 25.

52. Especially as there was industrial trouble in the coal mines around that time.

53. Infra, pp 21–22.

54. Supra, note 26.

55. Cf Ybarra v Spangurd 25 Cal 2d 486 154 P 2d 687 (1944). P injured in operation while unconscious. Unreasonable to require P to point out particular culprit (cf res ipsa cognitive doctrine).

56. But perhaps not in Ybarra (n 55.) And note that the traditional system started from the position that it was for the Plaintiff to prove distinctiveness.

57. 345 Fed Supp 353 NY (1972).

58. Per Mask J at 937.

59. A statistician would here want to know about standard errors, of course.

60. Civil Liability (Contribution) Act 1(1).

61. It is cited neither in Clerk and Lindsell 15th Edition, nor in any English case (at time of writing (Dec 1982)).

62. Fortunately in the thalidomide cases, the latter was the case.

63. Infra, TH Busby's case, now 97.

64. [1969] 1 QB 38, 43.

65. To characterise the recovery as ‘full’ is, however, somewhat misleading. It had already been decided that the defendant was only 75 percent to blame for the accident.

66. [1970] AC 467 at 478.

67. Widgery LJ, ibid, at 480. Accord Fenton Atkinson LJ at 482; Harman LJ at 483.

68. Fenton Atkinson LJ, ibid, 482; Accord Harman LJ at 483.

69. Although in the instant case the Court chose to value the chance at 100%. See King. op cit, p 36, supra and discussion. pp. 24–26.

70. [1970] AC 467 at 483.

71. At 492.

72. At 494.

73. At 496.

74. Ibid, It is interesting that only Lord Pearson addresses the lost chance issue proposed by the Court of Appeal. He rejects recovery under this head as ‘too remote’.

75. See discussion of the McWilliam and Sibbald or Bermingham cases, supra.

76. Indeed, the possibility of valuation is implicitly recognized by the finding at trial that the defendant was only 75% responsible.

77. But see Wilberforce, Lords and Davies, Edmund, Dubitante in Jobling v Associated Dairies Ltd (1981) 2 Google Scholar All ER 752 infra.

78. The maximum penalty for armed robbery in England is imprisonment for life. ‘Theft Act 1968, s 8.

79. See generally King, op cit. note 33, supra.‘The courts, in both Britain and America have traditionally taken an all-or-nothing approach to this problem. See Burmah Oil Co v Lord Advocate [1965] AC 75, Mayor of New York v Lord 18 Wend 126 (1837); but cf Sirocco v Geary 3 Cal 69 (1857) (SC). For the clearest American exposition of the issues, see Dillon v Twin State Gas 163 A 111 (1932) (NHSC).

80. It should be noted that in the ‘Ogopogo’ case (Horsley v MacLaran, [1972] SCR 441), the issues discussed hereafter did not arise because of what the court felt was the special nature of the duty of a boat owner to his passenger-guest.

81. 14 KIR 285, QB

82. At 322.

83. See supra. part I.

84. At 296–7.

85. This case also offers a good example of a ‘temporal conflict’. Although conditions in the foundry may well have contributed to the plaintiff's lung disease prior to 1964, because the action was based on the breach of a statutory duty, this did not become a legal cause of the disability until the statute was modified. See L. Brilmayer, unpublished paper, Yak Law School, Fall 1982.

86. At 297.

87. Performance Cars Ltd v Abraham [1962] 1 QB 33.

88. [1978] 2 Lloyd's LR 210, QBD.

89. Ibid, 211.

90. Supra pp 9 et seq.

91. In a system of socialised forms of insurance and various state or quasi-state organisations established to provide various forms of compensation, such a situation may not necessarily obtain. See Jobling v Associated Dairies and the discussion, infra.

92. 16 October 1980, transcript.

93. Ibid, Brandon and O'Connor LJ agree.

94. See the discussion of Summers v Tice and Sidnell v Abbott Laboratories in Part I

95. See 90.

96. The Court of Appeal dealt with these same issues in the case of the negligent solicitor, Roberts v JW Ward & Son 126 SJ 120. This case offers an interesting twist and an example of artful argument for the non-tortious subsequent event invoked to limit the defendants' liability was their own omission. The court rejected the argument and found for the plaintiff.

97. 28 ALR 611 (1979–80), PC.

98. At 616.

99. As we have already seen, Sindell requires that each actor bear responsibility in accordance with its market share. Under a Workman's Compensation scheme, in the absence of relative blameworthiness provisions, liability would be divided equally according to the number of employers in order to insure an actuarial fit.

100. [1980] 3 All ER 769.

101. [1981] 2 All ER 752.

102. Ibid. at 755, 754, 757, 764, 768, 760.

103. For Lord Edmund-Davies' position, see particularly 758.

104. Ibid 755.

105. Ibid.

106. For example, not only the CICB but the MIB. The role of the National Health cannot be underestimated.

* We wish to thank Professor Guido Calabresi who read and commented on an earlier draft of this paper. The authors are, of course, solely responsible for its contents.