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

Claimants contracted mesothelioma after negligent asbestos exposure by multiple employers. Being unable to prove which exposure was the specific cause, they sued. The House of Lords held that claimants could succeed by proving a defendant's negligence materially increased their risk.

Facts

This case involved two conjoined appeals brought by the dependants of workers who had died from mesothelioma, a fatal lung cancer caused by exposure to asbestos dust. In both cases, the deceased had been negligently exposed to asbestos by more than one employer during their working lives. Mesothelioma may be caused by a single asbestos fibre, or a few fibres, lodging in the lung. However, current medical science could not determine which specific period of exposure, and therefore which employer, had been the actual cause of the disease. The Court of Appeal, applying the conventional ‘but for’ test of causation, had dismissed the claims because the claimants could not prove on a balance of probabilities that the wrongful exposure by any single defendant had caused the mesothelioma.

Issues

The central legal issue before the House of Lords was one of causation. Could a claimant succeed in a negligence claim where they could prove a breach of duty by multiple defendants, and that the breach materially increased the risk of injury, but could not prove on the balance of probabilities which specific defendant’s breach caused or made a material contribution to the actual injury?

The issue… is whether, in the special circumstances of such a case, a claimant can succeed if he can prove that a defendant’s tortious conduct made a material contribution to the risk of his contracting the disease, but cannot prove on a balance of probabilities that the defendant’s tortious conduct caused him to contract it.

The court had to decide whether to depart from the standard ‘but for’ test of causation (‘did the defendant’s breach of duty cause the damage?’) in favour of a less stringent test in these specific circumstances.

Judgment

The House of Lords unanimously allowed the appeals, finding in favour of the claimants. It held that the traditional ‘but for’ test for causation was not satisfied, but created a special, modified approach to causation to address the injustice that would otherwise result.

The Exceptional Principle

Their Lordships held that in the specific circumstances of this case, a different approach to causation was justified. Where a claimant had been exposed to a known single causal agent (asbestos) by multiple negligent defendants, and had contracted the disease associated with that agent (mesothelioma), but could not scientifically prove which exposure was the definitive cause, it was sufficient to prove that a defendant’s breach of duty had ‘materially increased the risk’ of contracting the disease. Each employer who had materially increased the risk was held to be jointly and severally liable.

Lord Bingham identified six conditions for this exceptional principle to apply:

1. The claimant was employed at different times by both defendant A and defendant B.
2. A and B were both under a duty to take care to prevent the claimant inhaling asbestos dust.
3. Both A and B were in breach of that duty.
4. The claimant is suffering from mesothelioma.
5. Mesothelioma is caused by asbestos inhalation.
6. The claimant cannot prove which employment was the source of the causative exposure.

Lord Nicholls of Birkenhead highlighted the policy considerations underpinning the decision:

The rock of uncertainty, reflecting the limits of current medical and scientific knowledge, is one on which the claim may founder. Is that a just result? … It is deeply offensive to one’s sense of justice that a wrongdoer should be able to escape liability for the consequences of his wrongdoing by pointing to the fact that another person was also a wrongdoer.

Distinction from Wilsher

The court distinguished the case from Wilsher v Essex Area Health Authority, where there were multiple different potential causal agents. In Fairchild, there was only one agent (asbestos) that had caused the harm, and the uncertainty was which of the negligent defendants had supplied the specific quantity of that agent which proved fatal.

Implications

The Fairchild decision created a significant but narrowly defined exception to the standard principles of causation in tort law. It demonstrated the judiciary’s willingness to adapt legal principles to achieve a just outcome in cases involving scientific uncertainty, particularly where rigid application of precedent would deny a remedy to victims of proven negligence. The ruling provided a vital route to compensation for victims of industrial diseases like mesothelioma where multiple employers were at fault. Each employer who materially contributed to the risk of harm could be held fully liable for the resulting damage, reflecting a policy decision that the burden of such uncertainty should fall on the negligent wrongdoers rather than the innocent victim.

Verdict: The claimants’ appeals were allowed. Each negligent employer was held to be jointly and severally liable for the victims’ mesothelioma.

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