Fairchild v Glenhaven Funeral Services PDF

A key development in this area came with the House of Lords’ decision in Fairchild v Glenhaven Funeral Services. However, despite it being a case of ‘material increase in risk’, discussed previously, this case also fits into another category: that where the court feels the result of using the ‘but f...

A key development in this area came with the House of Lords’ decision in Fairchild v Glenhaven Funeral Services. However, despite it being a case of ‘material increase in risk’, discussed previously, this case also fits into another category: that where the court feels the result of using the ‘but for’ test is an unjust one. 9.2.2.2 ‘Unjust’ results 1: the mesothelioma exception Fairchild v Glenhaven Funeral Services UKHL 22 (HL) A group of claims were made against multiple defendants by three employees who developed mesothelioma (an inevitably fatal type of lung cancer), caused by exposure to asbestos. Two of the claims failed at first instance, as the claimants could not satisfactorily show where the asbestos that caused their mesothelioma had come from. In relation to the claim in Fairchild, however, there was no problem in establishing that the employer negligently allowed the claimant to be exposed to asbestos—the problem was that the employee had been exposed by a series of negligent employers, not just one. As in McGhee, the experts agreed that mesothelioma could be caused in a single moment—for example, even by a single asbestos fibre entering the lung—and not necessarily by prolonged exposure.20 The difficulty was that the claimants could not show when that causative exposure occurred, so they could not show, on the balance of probabilities, which of the employers was the factual cause. On that basis, strictly following the ‘but for’ test, the Court of Appeal dismissed the claim, and the claimant appealed to the House of Lords. The law lords held that the ‘but for’ test produced an unjust result. The idea that no defendant would be liable for the claimant’s harm, when there was no doubt that the cause had been negligence, clearly sat uncomfortably with them. Accordingly, they resurrected McGhee, approving the ‘material increase of risk’ interpretation and stating that in this exceptional type of case (perhaps defined as employment/industry)21 this would be enough to establish factual causation; the defendants were therefore liable.22 In finding in Fairchild that each defendant had materially increased the risk of the claimant contracting mesothelioma, the House of Lords did not overrule Wilsher, which seemed to potentially stand in the way of this interpretation. Instead, they distinguished it, holding that Wilsher had been correctly decided on its facts.23 The p. 274↵law lords stressed that Fairchild was an exception to normal causation principles. The outcome of Fairchild was that each negligent employer was held jointly and severally liable. It would therefore be up to the employers who had been brought before the court to seek contributions from others who had not (under s 1(1) of the Civil Liability (Contribution) Act 1978). Pause for reflection Does the fact that Wilsher and Fairchild are both good law have any impact on the type of case the ‘material increase of risk’ test can be applied to in the future? We do not find the explanation that Wilsher should be confined to its facts convincing, and would rather have seen a more carefully stated exposition of the policy and other distinguishing arguments behind the decision to depart from what seemed to be binding authority. Was it, for example, the difference between finding employers (who were likely to be insured) liable and the NHS? Did the shorter timescale in Wilsher indicate a different outcome—the claimants in Fairchild had worked and were exposed to asbestos over a long period of time, followed by the slow onset of their disease and the inevitable nature of their death? A clearer explanation might be found in Ministry of Defence v AB and others, a test case involving claims relating to around 1,000 people harmed (including various cancers) by nuclear testing in the Pacific in the 1950s. Evidence showed there were several potential causes of the cancers other than radiation. While the judge at first instance thought that the higher courts might be happy to extend the Fairchild exception to this kind of case ‘as a matter of policy’, the Court of Appeal found ‘no foreseeable possibility that the Supreme Court would be willing to extend the Fairchild exception’ in cases where multiple potential causes exist, some of which were impossible to identify.24 And they were correct: in the Supreme Court Lord Phillips observed that, in light of the observations made in Sienkiewicz v Greif (UK) Ltd , the Court of Appeal’s conclusion that the Fairchild exception would not be extended was correct (at ). There is clearly ‘no appetite in the appellate courts for extending the Fairchild exception to cases involving diseases other than mesothelioma’.25