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  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  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  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