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Fairchild v Glenhaven Funeral Services Ltd & Ors
Factual and Procedural Background
Three consolidated appeals concerned former employees (“the Appellants”) who developed mesothelioma after many years of occupational exposure to asbestos. Each Appellant had worked for successive employers, all of whom breached their duty to implement adequate asbestos-control measures. Because medical science cannot pinpoint which particular exposure (or fibre) triggered mesothelioma, the Court of Appeal dismissed the claims for lack of proof that any single employer’s breach caused the disease. The House of Lords (now the Supreme Court) subsequently granted permission to appeal and, on 16 May 2002, announced that the appeals would be allowed; the present opinion sets out the detailed reasons.
Legal Issues Presented
- Whether, in mesothelioma claims, an employee who has been wrongfully exposed to asbestos by two or more employers must prove on the balance of probabilities that any individual employer’s breach was the direct cause of the disease.
- Whether proof that each employer’s breach materially increased the risk of the employee contracting mesothelioma is sufficient to satisfy the requirement of causation at common law.
- If causation is established on a “material increase in risk” basis, whether each negligent employer is liable for the whole of the damage (subject to contribution rights).
Arguments of the Parties
Appellants’ Arguments
- Medical evidence shows that mesothelioma can be triggered by a single fibre and current science cannot identify the responsible exposure; therefore orthodox “but for” causation is impossible to prove.
- Following McGhee v National Coal Board, where a defendant’s breach materially increases the risk of the very disease that occurs, the breach should be treated as a material contribution to the injury.
- To deny recovery would drain employers’ duties of practical content and permit negligent exposure to asbestos with impunity.
Respondents’ Arguments
- McGhee should be confined to its facts; it did not establish a new legal rule but merely involved a factual inference open on the evidence.
- The Appellants cannot demonstrate that any Respondent’s breach probably caused, or even contributed to, the particular mutation that led to their mesothelioma.
- Extending liability to all negligent employers would impose joint and several liability on an employer who may in truth have had no causal connection with the disease.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bonnington Castings v Wardlaw | Defendant liable if breach “materially contributed” to injury; cumulative dust exposure. | Used to illustrate that multiple tortious exposures can jointly satisfy causation. |
| Nicholson v Atlas Steel Foundry | Failure to reduce dust that prolonged exposure increased risk and therefore causation established. | Highlighted relevance of increased risk when assessing material contribution. |
| McGhee v National Coal Board | Proof that breach materially increased risk of disease may equate to proof of causation. | Treated as controlling authority; principle expressly adopted and applied. |
| Wilsher v Essex AHA | Distinguished situations with multiple independent potential causes. | Court explained why Wilsher does not bar recovery in the present asbestos context. |
| March v Stramare | ‘But for’ test not exclusive; policy considerations inform causation. | Cited to justify flexibility in causal analysis. |
| Snell v Farrell | Courts may adjust causation rules where strict proof would defeat meritorious claims. | Referenced as comparative support for relaxing orthodox proof in complex disease cases. |
Court's Reasoning and Analysis
Judge [Bingham] (with concurring opinions from Judges [Nicholls], [Hoffmann], [Hutton] and [Rodger]) held that rigid application of “but for” causation would extinguish the very protection that tort law and workplace statutes are intended to provide. The Court identified six critical conditions present in each case: (1) successive employments with asbestos exposure; (2) uniform duty on each employer to prevent such exposure; (3) breach by each employer; (4) subsequent mesothelioma; (5) no other credible cause; and (6) scientific inability to attribute the disease to any particular employment.
Drawing on McGhee, the Court reaffirmed that, in special circumstances where strict proof is impossible, showing that a defendant’s breach materially increased the risk of the very harm suffered is tantamount to showing causal contribution. Policy considerations—namely, the need to avoid rendering employer duties illusory and to allocate the evidential uncertainty to the wrongdoer rather than the innocent employee—justified adapting the traditional causation test. Comparative jurisprudence from other common-law and civil-law systems, including Roman law, German BGB §830, and Californian asbestos cases (Rutherford), confirmed that many legal systems adopt analogous solutions when scientific uncertainty would otherwise defeat meritorious claims.
Accordingly, each Respondent’s breach, by materially increasing the risk of mesothelioma, was held to have materially contributed to the disease. Each Respondent is therefore liable in full, with contribution issues to be resolved between employers inter se.
Holding and Implications
Appeals ALLOWED. The House of Lords held that, where multiple employers have breached their duty by exposing an employee to asbestos and thereby materially increased the risk of mesothelioma, each employer is liable for the resulting disease even though medical science cannot identify which exposure triggered it.
Immediate implications are that mesothelioma claimants need only prove a material increase in risk to establish causation against any negligent employer; defendants remain jointly and severally liable but may seek contribution from others. The ruling preserves the practical efficacy of workplace safety duties without creating a general relaxation of causation rules outside narrowly defined circumstances.
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