Fairchild v Glenhaven Funeral Services Limited and Others, Court of Appeal

Mesothelioma – exposure to asbestos dust in the course of employment by more than one employer – applicability of Occupiers Liability Act.

The Court of Appeal sat on this and five other appeals in which similar issues arose relating to material contribution.

1. In Fairchild, Fox and Matthews, the court held that the claimant could not recover damages. Mesothelioma, unlike asbestosis or pneumoconiosis is a single, indivisible disease. The claimant could not establish on the balance of probabilities when he inhaled the asbestos fibre, which caused the cell in the pleura to become malignant.
2. In many cases the defendants may no longer survive. In Fairchild none of the relevant employers were available. In Matthews only two of the three most likely defendants were available.
3. It could not be right that once one tort feasor was before the court, the court could find that tort feasor notionally liable on the balance of probabilities for the whole of the claimant’s injuries.
4. In Babcock, Fairchild and Dyson the court found no liability attaching to an occupier under the OLA from the mere fact of exposure to asbestos dust in premises of which the defendant was the occupier. Section 2(ii) (the duty to ensure that a visitor will be reasonably safe in using the premises) relates to the static condition or ‘occupancy liability’ of the premises. It does not concern itself with ‘activity liability’. Any liability in respect of a danger to which workmen may be exposed as a consequence of activities performed on the premises, falls to be decided by common law or by some other statute.

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.