Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 (20 June 2002)

Workers developed mesothelioma after being exposed to asbestos dust by multiple employers in breach of their duties. The House of Lords held that where science cannot determine which employer's breach caused the disease, proof that each materially increased the risk of contracting the disease is sufficient to establish causation.

Facts

The appellants were widows and an employee who had contracted mesothelioma, a fatal cancer caused by inhalation of asbestos fibres. Each victim had been employed by multiple employers during their working lives and had been exposed to asbestos dust in breach of the employers’ duties of care. Medical science established that the risk of developing mesothelioma increases with exposure to asbestos, but could not determine whether the disease was triggered by a single fibre or multiple fibres, nor identify which employer’s breach caused the disease. The Court of Appeal dismissed the claims on the basis that the claimants could not prove, on the balance of probabilities, that any particular defendant’s breach had caused the mesothelioma.

Issues

Primary Issue

Whether a claimant can recover damages against an employer who breached their duty of care by exposing them to asbestos dust, when the claimant cannot prove on the balance of probabilities that the particular employer’s breach (as opposed to another employer’s breach) caused the mesothelioma.

Secondary Issues

The proper interpretation of McGhee v National Coal Board and whether proof that a defendant materially increased the risk of disease can be treated as proof of causation.

Judgment

The House of Lords unanimously allowed the appeals. The House held that in circumstances where: (1) the claimant was employed by different employers who were each in breach of duty to protect against asbestos exposure; (2) the breaches resulted in the claimant inhaling excessive asbestos dust; (3) the claimant developed mesothelioma; (4) other causes could be discounted; but (5) medical science could not determine which employer’s breach caused the disease, the claimant was entitled to recover against any or all of the employers.

Lord Bingham stated that treating the conduct of employers in exposing the claimant to risk as making a material contribution to the disease was consistent with principle, authority and justice. He emphasised that the injustice of denying redress to victims was heavily outweighed by any injustice in imposing liability on duty-breaking employers.

Lord Hoffmann explained that the causal requirements for liability are part of the legal conditions for liability and should be formulated to achieve just results. Where the duty was specifically intended to protect employees against the risk of a particular disease, and the employee contracted that disease, requiring proof that would empty the duty of content was inappropriate.

Lord Nicholls observed that the threshold ‘but for’ test of causation may sometimes be over-exclusionary, and where justice requires, the threshold may be lowered. The unattractiveness of casting liability widely was far outweighed by the unattractiveness of denying redress to victims.

The House confirmed that McGhee v National Coal Board established a principle that, in appropriate circumstances, proof of materially increasing risk could be treated as equivalent to proof of material contribution to injury. The contrary interpretation of McGhee in Wilsher v Essex Area Health Authority was disapproved insofar as it suggested McGhee was merely a robust factual inference.

Implications

This decision represents a significant development in the law of causation for industrial disease claims. It establishes that where employees are exposed to harmful agents by multiple employers in breach of duty, and medical science cannot identify which exposure caused the disease, proof that each employer materially increased the risk of the disease is sufficient to establish causation. This prevents employers from escaping liability simply because their wrongdoing was combined with the wrongdoing of others. The principle is confined to cases meeting the specific conditions outlined and does not extend to situations like Wilsher where there are multiple possible causes unrelated to the defendant’s wrongdoing.

Verdict: Appeals allowed. Each defendant employer who breached their duty by exposing the claimants to asbestos dust and thereby materially increased the risk of mesothelioma was held liable in full for damages, notwithstanding the impossibility of proving which employer's breach actually caused the disease.

Source: Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 (20 June 2002)