Novus Actus – Risk vs. Inconvenience – Philip Clay v TUI UK Ltd [2018] EWCA Civ

Mark Fanning of Miles Fanning Legal writes, in this guest blog, about his recent success in Philip Clay v TUI UK Ltd [2018] EWCA Civ where Ronald Walker QC of 12 King’s Bench Walk and Mark Fanning represented the Respondent.

The Court of Appeal gave judgment in favour of the Respondent in an interesting case considering the liability of a tour operator under the Package Travel, Package Holidays, and Package Tours Regulations 1992 (the “Package Travel Regulations”) for injury to the Appellant after a balcony fall. Continue reading “Novus Actus – Risk vs. Inconvenience – Philip Clay v TUI UK Ltd [2018] EWCA Civ”

Injury by Exposure to Oil Well Fumes – The Burden of Proof and a ‘Flexible’ Approach to Causation

This blog post is by James Beeton of 12 King’s Bench Walk.

The Privy Council decision in Petroleum Co of Trinidad and Tobago Ltd v Ryan and Anor [2017] UKPC 30 is based primarily on its own facts, but contains two broader points of interest for tort lawyers.

The first is the Privy Council’s refusal to draw an adverse inference or to shift the burden of proof to a defendant in circumstances where a ‘gap in the [defendant’s] evidence’ had not been explored with the witnesses at trial. This aspect of the decision highlights the importance of allowing another party the opportunity to explain its own failure to adduce potentially relevant evidence before inviting a court to draw an adverse inference in respect of the same.

The second is the Privy Council’s rejection of a sanguine approach to causation in cases involving environmental issues. Lord Carnwath (delivering judgment on behalf of the whole court) gives a concise reminder that Bonnington Castings Ltd v Wardlaw [1956] AC 613 is not authority for the general proposition that it may on occasion be appropriate to depart from the normal ‘but for’ test to causation. That decision involved a finding by the court that both guilty and innocent causative agents had as a matter of fact operated cumulatively to cause the claimant’s injury. Lord Carnwath’s decision on this point is consistent with the position adopted last year by the Privy Council in the case of Williams v Bermuda Hospitals Board [2016] UKPC 4.

Bonnington Castings does not therefore provide a basis for sidestepping the stringencies of the ‘but for’ test to causation where the court cannot first be satisfied of a link between the relevant agent(s) and the injury on standard causative principles. Continue reading “Injury by Exposure to Oil Well Fumes – The Burden of Proof and a ‘Flexible’ Approach to Causation”