Gopal Sri Ram JCA:

This appeal has to do with causation in the law of negligence in tort. It arises in the context of professional negligence on the part of an advocate and solicitor. It comes at a time when the subject is in vogue. In England, for example, the courts have, influenced no doubt by the far-reaching decision of the European Court of Human Rights in Osman v. The U.K.[2000] E.H.R.R. 245 removed the blanket immunity enjoyed by advocates since the policy decision in Rondel v. Worsley[1969] 1 AC 191. See, Arthur (JS) Hall & Co. v. Simons[1999] 3 WLR 873. Our law has, however, always differed from English law. Advocates here have never enjoyed immunity from suits for negligence. See, Miranda v. Khoo Yew Boon[1967] Ali Jais v. Linton Albert & Anor[1999] 4 CLJ 167. This may cause difficulties especially in criminal cases where there is a danger of the merits of a conviction being re-litigated in civil proceedings. Perhaps the correct policy approach in such cases lies in the court's power to strike an action out as an abuse of process. See, Hunter v. Chief Constable of West Midlands & Anor[1981] 3 All ER 727.

But the present appeal does not involve any wider policy question. It is a case in which the appellant advocate delivered a defence but failed to appear in court on the day fixed for the trial of the action. He also did not inform his clients (the respondents) of the trial date. Judgment was then entered against the respondents. An application to set aside the judgment failed before Mohamed Zahir J, inter alia, on the ground that the defence raised no triable issue. A subsequent appeal also failed. The advocate has seized upon the finding made by Mohamed Zahir J. His counsel argued that even if the advocate had informed the respondents and they all had been present at the date of hearing it would have made no difference to the respondents' case. It would have been lost anyway. So it all goes back to causation.

A plaintiff may suffer damage. But it is of no consequence unless the defendant negligently caused it. If the damage would have happened anyway, then the defendant cannot be held liable for it. For liability to be visited upon a defendant's head, it must be proved that but for his negligence the harm would not have happened. See, Barnett v. Chelsea & Kensington Hospital Management Committee[1968] 1 All ER 1068. But, the inferences to be drawn from any given set of circumstances may establish causation. The point is well illustrated by McGhee v. National Coal Board[1972] 3 All ER 1008.

In that case, the pursuer worked in a brick kiln. The hot and dusty conditions of his work place caused the brick dust to adhere to his sweaty skin. No breach of duty by his employers, the defenders, was established in respect of his working conditions. However, the employers were held to be at fault in failing to provide adequate washing facilities which resulted in the pursuer having to cycle home after work with his body still caked in brick dust. The pursuer contracted dermatitis and the evidence that this was caused by the brick dust was accepted. Brick dust adhering to the skin was a recognised cause of industrial dermatitis and the provision of showers to remove it after work was a usual precaution to minimise the risk of the disease. The precise mechanism of causation of the disease however, was not known and the furthest the doctors called for the pursuer were able to go was to say that the provision of showers would have materially reduced the risk of dermatitis. They were unable to say that it would probably have prevented the disease.

The pursuer failed before the Lord Ordinary and the First Division of the Court of Session on the ground that he had not proved causation. On further appeal, the House of Lords reversed. Lord Wilberforce said (at p. 1012):

But the question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot