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Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32

By Oxbridge Law TeamUpdated 07/01/2024 20:22

Judgement for the case Fairchild v Glenhaven Funeral Services Ltd

KEY POINTS

  • In cases of multiple exposures to asbestos by different defendants, where it is not possible to prove which exposure caused the disease, a departure from the traditional "but for" test was necessary.

  • Under the “material increase of risk” test, if a defendant's negligence materially increased the risk of harm to the plaintiff, that defendant could be held liable even if their exposure alone might not have been sufficient to cause the disease.

FACTS

  • The plaintiffs in this case were workers who developed mesothelioma, a cancer caused by exposure to asbestos. Each plaintiff had worked for different employers in various roles involving asbestos exposure. The employers admitted that they had breached their duty of care by exposing the plaintiffs to asbestos dust.

  • The central legal issue was the causation of mesothelioma and how the "but for" test of causation, which is a standard principle in tort law, applied in this unique situation. Under the "but for" test, a defendant's negligence is considered the cause of harm if the harm would not have occurred "but for" the defendant's actions.

  • However, mesothelioma is an unusual disease in that it can be caused by the cumulative effect of exposure to asbestos dust from multiple sources, and a single exposure to asbestos dust can cause the disease without any clear way to determine which exposure was the actual cause. This made it difficult to apply the traditional "but for" test of causation.

JUDGEMENT

  • The court ruled in favour of the plaintiffs.

COMMENTARY

  • This decision had significant implications for cases involving mesothelioma and other diseases with similar characteristics, as it allowed individuals who were unable to identify the exact source of exposure to still seek compensation from the multiple parties who had exposed them to asbestos.

ORIGINAL ANALYSIS

  • Plaintiffs had been exposed to asbestos by different employers over different times and they caught a disease from it. However it could not be proved which specific exposure caused the disease or at which moment it was contracted, so that no tortfeasor could be said on the balance of probabilities to have caused the disease. 

  • HL held that in such a case (i.e. the specifics of this case where the source of the problem is undoubted but it is impossible to pinpoint a particular moment or Defendant that caused the disease) there was no need to prove “balance of probabilities.” Instead all that was necessary was that each defendant's wrongdoing had “materially increased the risk” of contracting the disease. Within these guidelines, claims could be founded against all the employers. 

Lord Bingham

  • This type of modification is necessary where the injury is caused by slow build up and not one sudden infliction. 

  • There are policy arguments either way for the principle of the “increase the material risk of harm”. 

  • Against it are: 

    1. An employer for only a short period of time might be punished; 

    2. an employer who didn’t cause the harm might be made liable. 

  • However FOR it are:

    1. The idea that Plaintiffs should be compensated for injury that his employer should have done more to prevent; 

    2. To exclude the rule would be to prevent all claims for injuries which are caused by a development over time rather than at one moment, as here. 

Lord Nicholls

  • The doctrine is necessary in cases of two or more alternative causes to prevent patent unfairness: suppose A and B are hunting and shooting carelessly so that one of them (it is unknown which) shoots and injures passer-by C. 

  • If causation had to be proved beyond reasonable doubt then there would be no compensation. It is more unfair that a victim should not be compensated than that a hunter who didn’t cause the harm should be punished (since he is doing something inherently fault-worthy). 

  • Where good policy reasons exist, the court can depart from the “balance of probabilities” rule. However these reasons must be so good that it is worth depriving Defendant of the protection afforded to him by the normal evidentiary rule. 

  • He also said that “considerable restraint is called for in any relaxation of the threshold ‘but for’ test of causal connection”, that “Policy questions will loom large” and that it was “impossible to be more specific”. 

Lord Hoffman

  • There are 5 features that justify an exception to the general rule on “balance of proof”: 

First, we are dealing with a duty specifically intended to protect employees against being unnecessarily exposed to the risk of (among other things) a particular disease. 

Secondly, the duty is one intended to create a civil right to compensation for injury relevantly connected with its breach. 

Thirdly, it is established that the greater the exposure to asbestos, the greater the risk of contracting that disease. 

Fourthly, except in the case in which there has been only one significant exposure to asbestos, medical science cannot prove whose asbestos is more likely than not to have produced the cell mutation which caused the disease. 

Fifthly, the employee has contracted the disease against which he should have been protected.

Lord Rodger

  • Conditions for an exception are: 

    1. Impossibility of proving who caused the harm. 

    2. Defendant materially increased probability of Plaintiff being harmed.

    3. Defendant’s conduct must have been capable of causing Plaintiff’s injury. 

    4. Defendant has to prove that his injury was caused by one kind of event (e.g. exposure to asbestos: NOT exposure + unhealthy lifestyle + working in a mine, etc.).

    5. That it was caused by agencies operating in the same way e.g. two types of dust ARE allowed. 

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Tort Law Notes
1,070 total pages
845 purchased

Tort Law notes fully updated for recent exams at Oxford and Cambridge. ...