UK: Personal Injury Liability Reviewed

The central questions to be determined in all three appeals were described by Lord Bingham in this way

"If "

(1) C was employed at different times and for different periods by both A and B, and

(2) A and B were both subject to a duty to take reasonable care or to take all practical measures to prevent C inhaling asbestos dust because of the know risk that asbestos dust (if inhaled) might cause a mesothelioma, and

(3) Both A and B were in breach of that duty in relation to C during the periods of C’s employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and

(4) C is found to be suffering from mesothelioma and

(5) Any cause of C’s mesothelioma other than in inhalation of asbestos dust at work can be effectively discounted, but

(6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together,

is C entitled to recover damages against either A or B or against both A and B?

The Courts at first instance in all three cases had found against the claimants and had been unanimously upheld in the Court of Appeal.

It would seem that the claimants had failed to convince the Judges at first instance and the Court of Appeal that they were able to succeed notwithstanding that they were unable to satisfy the "but for" test.

The "but for" test" has been the traditional approach to establishing causation.

Lord Bingham of Cornhill referred to this principle in the following way

"In a personal injury action based on negligence or breach of statutory duty the claimant seeks to establish a breach by the defendant of a duty owed to the claimant which has caused him damage. For the purpose of analysis and for the purpose of pleading, proving and resolving the claim, lawyers find it convenient to break the claim into its constituents: the duty, the breach, the damage and the causal connection between the breach and the damage. In the generality of personal injury actions it is of course true that the claimant is required to discharge the burden of showing the breach of which he complains was the damage for which he claims and to do so by showing that but for the breach would not have suffered damage."

Messrs Fairchild, Fox and Matthews had all been exposed by more than one exposer to quantities of asbestos fibre and had all gone on to develop an asbestos induced cancer known as mesothelioma.

Medical science is unable to say what the exact mechanism is which transforms a normal mesothelial cell into a mesothelioma. It is thought that it may well be a multi stage process in which 6 or 7 genetic changes occur to turn the normal healthy cell malignant. Asbestos is believed to play a part in one or more of those stages and it is not known whether the mesothelioma can be caused by one fibre or multiple fibres. It is accepted that the greater the quantity of dust or fibres inhaled the greater the risk of developing mesothelioma.

The defendants argued that the claimants could not pass the "but for" test in circumstances where they were unable to establish which defendant had exposed the claimant to the fatal fibre or fibres.

Had the House of Lords accepted that argument, as indeed the Court of Appeal had, the vast majority of mesothelioma cases would have fallen at the first hurdle as many mesothelioma victims have been exposed to asbestos in more than one employment.

At the root of the House of Lords decision was public policy. To find for the claimants would have resulted in an employer being held liable for damage that he may not have caused. That may be particularly so if all the employers with a potential liability are not before the Court. This is always the likelihood in mesothelioma and other long tailed disease cases where the period between exposure and onset of symptoms may be 40 – 50 years. As opposed to the potentially unjust imposition of liability on the defendant the alternative would have been failure to compensate those who have suffered when there was an admitted breach of the duty to protect them from that very harm. It is perhaps not surprising in those circumstances that the House of Lords concluded that the injustice of imposing liability on an employer who has breached that duty is heavily outweighed by the injustice of not providing a remedy in compensation for the victims.

The Court held that all negligent exposure materially increased the risk of the claimant suffering the very harm it was the employers duty to protect the claimant from. Where the claimant went on to develop a disease that was a likely consequence of the exposure then the defendant was liable by virtue of exposing the claimant to that risk. The House of Lords confirmed that McGhee -v-National Coal Board 1973 1 WLR1 did in fact establish the making of material contribution to the risk of injury was sufficient to establish causation and in so doing said that Lord Bridge was wrong when he expressed a contrary view in Wilsher v- Essex Health Authority 1988 AC 1074.

The defendants in Fairchild did not seek to argue that liability should be apportioned between the exposers. Accordingly in the absence of such an argument the Court found that if liable at all the defendants would be jointly and severally liable for the whole of the damage done to the claimants. This approach in relation to mesothelioma cases must be distinguished from Holtby -v-Brigham and Cowan 2000 ICR1086 where it was held that a defendant could only be liable for what he had caused or in proportion to the extent to which he had caused the condition to be worse. It was accepted by Holtby that asbestosis for example was divisible in that the total exposure contributed to the severity of the condition whereas in the case of mesothelioma it may be only one fibre that will react to trigger the condition. It remains an open question whether the House of Lords would have been prepared to apportion liability between the exposers if the argument had been addressed to them. The feeling from reading the judgment is that might well have been something they would have been prepared to do. In particular Lords Bingham and Hoffmann both cited the case of Sindell and Abbot Laboratories, a case heard in the Supreme Court of California. The claimant suffered injuries from exposure to a drug which was manufactured by a large number of defendants. The claimant had been unable to identify which of the defendants had made the particular samples of the drug that she had taken. The judgment of the Court in California was that the manufacturers should be liable in the proportion of their market share. Having referred to that particular case neither of their Lordships made any criticism of that approach.

Fairchild is not to be taken as a general departure from the "but for" principle. The approach adopted by the House of Lords will be restricted but the Court have made it clear that certainly insofar as the law of tort is concerned it is a developing area and from time to time public policy may dictate changes from what has been regarded as fixed principles of law.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.