Fairchild v. Glenhaven Funeral Services Ltd
Encyclopedia
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 is a leading case on causation in English tort law
. It concerned mesothelioma
, a deadly disease caused by breathing asbestos
fibres. The House of Lords approved the test of "materially increasing risk" of harm, as a deviation in some circumstances from the ordinary "balance of probabilities" test under the "but for" standard.
. Mr Fairchild contracted mesothelioma
. He died, and his wife was suing the employers on his behalf for negligence. A number of other claimants were in similar situations, and joined in on the appeal. The problem was, a single asbestos fibre, inhaled at any time, can trigger mesothelioma. The risk of contracting an asbestos related disease increases depending on the amount of exposure to it. However, because of long latency periods (it takes 25 to 50 years before symptoms of disease become evident) it is impossible to know when the crucial moment was. It was impossible therefore for Mr Fairchild to point to any single employer and say "it was him". Moreover, because the traditional test of causation is to show that "on the balance of probabilities" X has caused Y harm, it was impossible to say that any single employer was the cause at all. While it was possible to say "it was one of them" it was impossible to say which. Under the normal causation test, none of them would be found, on the balance of probabilities to have caused the harm.
the appropriate test in this situation, was whether the defendant had materially increased the risk of harm toward the plaintiff. The employers were joint and severally liable against the plaintiff (though amongst themselves they could sue one another for different contributions).
Lord Bingham, in particular, noted that in this case it was not possible to speak of "probabilities" in a simple way, because,
Moreover,
It was wrong to deny the claimants any remedy at all. Therefore the appropriate test of causation is whether the employers had materially increased the risk of harm to the claimants.
In this context, another asbestos related case came before the House of Lords in Barker v Corus [2006] UKHL 20. This time the question was whether, if one of the employers that was responsible for the materially increasing the risk of harm had gone insolvent, should the solvent employers pick up the proportion for which that insolvent employer was responsible? The House of Lords accepted the argument that the solvent employer should not. So for example, Mr B has worked for employers X, Y, and Z for ten years each. X, Y and Z have all exposed Mr B to asbestos, and it is not possible to say with which employer Mr B had contracted a disease. But now X and Y have gone insolvent, and Mr B is suing Z. The House of Lords held that Z would only have to pay one third of the full compensation for Mr B's disease, in other words, Z has only "proportionate liability" for that part which he materially increased the risk of Mr B's harm. This outcome was advocated by a number of academics.
The essential decision to be made is whether a tortfeasor or a claimant should bear the risk of other tortfeasors going insolvent. It is important to keep in mind, that in the example above, Z may not have actually caused any harm. Moreover, it might have been that Z in fact caused all the harm. But most importantly the claimant himself certainly caused none of the harm. After the decision in Barker there was a swift and fierce political backlash, with large numbers of workers, families, trade unions, and Members of Parliament calling for the reversal of the ruling. This was on the basis that it would undermine full compensation for working people and their families. Soon enough the Compensation Act 2006
was introduced, specifically to reverse the ruling. However the Act only applies to asbestos related disease. What remains to be seen is whether the "proportionate liability" idea will crop up in other situations.
Legislation cited
English tort law
English tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court – in a criminal case...
. It concerned mesothelioma
Mesothelioma
Mesothelioma, more precisely malignant mesothelioma, is a rare form of cancer that develops from the protective lining that covers many of the body's internal organs, the mesothelium...
, a deadly disease caused by breathing asbestos
Asbestos
Asbestos is a set of six naturally occurring silicate minerals used commercially for their desirable physical properties. They all have in common their eponymous, asbestiform habit: long, thin fibrous crystals...
fibres. The House of Lords approved the test of "materially increasing risk" of harm, as a deviation in some circumstances from the ordinary "balance of probabilities" test under the "but for" standard.
Facts
Mr Fairchild had worked for a number of different employers, as a subcontractor for Leeds City Council, all of whom had negligently exposed him to asbestosAsbestos
Asbestos is a set of six naturally occurring silicate minerals used commercially for their desirable physical properties. They all have in common their eponymous, asbestiform habit: long, thin fibrous crystals...
. Mr Fairchild contracted mesothelioma
Mesothelioma
Mesothelioma, more precisely malignant mesothelioma, is a rare form of cancer that develops from the protective lining that covers many of the body's internal organs, the mesothelium...
. He died, and his wife was suing the employers on his behalf for negligence. A number of other claimants were in similar situations, and joined in on the appeal. The problem was, a single asbestos fibre, inhaled at any time, can trigger mesothelioma. The risk of contracting an asbestos related disease increases depending on the amount of exposure to it. However, because of long latency periods (it takes 25 to 50 years before symptoms of disease become evident) it is impossible to know when the crucial moment was. It was impossible therefore for Mr Fairchild to point to any single employer and say "it was him". Moreover, because the traditional test of causation is to show that "on the balance of probabilities" X has caused Y harm, it was impossible to say that any single employer was the cause at all. While it was possible to say "it was one of them" it was impossible to say which. Under the normal causation test, none of them would be found, on the balance of probabilities to have caused the harm.
Judgment
The House of Lords held that, following McGhee v. National Coal BoardMcGhee v. National Coal Board
McGhee v National Coal Board, [1972] 3 All E.R. 1008, 1 W.L.R. 1, is a leading tort case decided by the House of Lords. The Lords held that where a breach of duty has a material effect on the likelihood of injury then the subsequent injury will be said to have been caused by the breach.-Facts:James...
the appropriate test in this situation, was whether the defendant had materially increased the risk of harm toward the plaintiff. The employers were joint and severally liable against the plaintiff (though amongst themselves they could sue one another for different contributions).
Lord Bingham, in particular, noted that in this case it was not possible to speak of "probabilities" in a simple way, because,
"It is on this rock of uncertainty, reflecting the point to which medical science has so far advanced, that the three claims were rejected by the Court of Appeal and by two of the three trial judges."
Moreover,
"The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another."
It was wrong to deny the claimants any remedy at all. Therefore the appropriate test of causation is whether the employers had materially increased the risk of harm to the claimants.
Significance
The cost of this ruling was enormous. It is estimated that this single judgment was worth £6.8bn. Approximately 13 Britons die every day from asbestos related diseases, and the rate of deaths are increasing.In this context, another asbestos related case came before the House of Lords in Barker v Corus [2006] UKHL 20. This time the question was whether, if one of the employers that was responsible for the materially increasing the risk of harm had gone insolvent, should the solvent employers pick up the proportion for which that insolvent employer was responsible? The House of Lords accepted the argument that the solvent employer should not. So for example, Mr B has worked for employers X, Y, and Z for ten years each. X, Y and Z have all exposed Mr B to asbestos, and it is not possible to say with which employer Mr B had contracted a disease. But now X and Y have gone insolvent, and Mr B is suing Z. The House of Lords held that Z would only have to pay one third of the full compensation for Mr B's disease, in other words, Z has only "proportionate liability" for that part which he materially increased the risk of Mr B's harm. This outcome was advocated by a number of academics.
The essential decision to be made is whether a tortfeasor or a claimant should bear the risk of other tortfeasors going insolvent. It is important to keep in mind, that in the example above, Z may not have actually caused any harm. Moreover, it might have been that Z in fact caused all the harm. But most importantly the claimant himself certainly caused none of the harm. After the decision in Barker there was a swift and fierce political backlash, with large numbers of workers, families, trade unions, and Members of Parliament calling for the reversal of the ruling. This was on the basis that it would undermine full compensation for working people and their families. Soon enough the Compensation Act 2006
Compensation Act 2006
The Compensation Act 2006 is an Act of the Parliament of the United Kingdom, introduced in response to concerns about a growing compensation culture but conversely to ensure that the public received dependable service from claims management companies...
was introduced, specifically to reverse the ruling. However the Act only applies to asbestos related disease. What remains to be seen is whether the "proportionate liability" idea will crop up in other situations.
See also
- Barker v. CorusBarker v. CorusBarker v Corus plc [2006] is a notable House of Lords decision in the area of industrial liability in English tort law, which deals with the area of causation...
- Asbestos and the lawAsbestos and the lawThis article concerns asbestos-related legal and regulatory issues. Litigation related to asbestos injuries and property damages has been claimed to be the longest-running mass tort in U.S. history...
- NegligenceNegligenceNegligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
- English tort lawEnglish tort lawEnglish tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court – in a criminal case...
- CausationCausation (law)Causation is the "causal relationship between conduct and result". That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is...
- McGhee v National Coal Board
Legislation cited
- Factories Act 1961Factories Act 1961The Factories Act 1961 is an Act of the Parliament of the United Kingdom. At the time of its passage, the Act consolidated much legislation on workplace health, safety and welfare in Great Britain. Though some of it remains in force, it has largely been superseded by the Health and Safety at Work...
(c 34) ss 63 and 155
External links
- Full judgment from the House of Lords.