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Fairchild v Glenhaven, House of Lords

24 June 2002
The issues

Causation – material increase in risk – Wilsher -v- Essex Area Health Authority – mesothelioma.

The facts

All three Appeals before the Lords were brought in respect of exposure to asbestos bringing about mesothelioma. In each case, the victims had been exposed to asbestos by more than one person. No one Defendant however was responsible for more than a half of the fibres inhaled by any of the victims. The medical evidence was to the effect that the precise mechanism by which asbestos fibres which were inhaled caused the mesothelioma to develop was unknown, although it was known that the risk increased the amount of asbestos inhaled. There were various possible explanations as to how the mesiothelioma was caused. One hypothesis was to the effect that a single fibre was sufficient. If this was correct, then a Claimant could not prove which of the possible Defendants which had exposed him or her to asbestos, was responsible for the specific fibre which caused the cancer.

The decision

1. All three Appeals would be allowed.

2. The decision in McGhee -v- National Coal Board did lay down a new principle of law. A modified approach to the test of causation was justified. A mechanical approach to issues of causation generally was not to be encouraged. There can be no uniform causal requirements for liability in tort, rather there were varying requirements pending on the basis and purpose of liability. The law had to grapple with causation, having in mind neither logic nor philosophy alone, but the practical way in which the common man’s mind works in the everyday affairs of life.

“The concepts of fairness, justice and reason underlie the rules which state the causal requirements of liability for a particular form of conduct%u2026 just as much as they underlie the rules which determine that conduct to be tortious (Lord Hoffmann).

McGhee was correctly decided. The decision in Wilsher was also correct, but the speech of Lord Bridge in Wilsher in which he endeavoured to explain McGhee as not creating any new rule of law, was incorrect.

The issue before the House of Lords was how narrowly that principle which had been developed in McGhee’s case should be confined. “Caution is advisable. Wilsher’s case shows the dangers of over-generalisation”. (Lord Hoffmann).

Lord Hoffmann indicated that there were 5 necessary features namely:-

Firstly, that the Court was dealing with a duty specifically intended to protect employees against being unnecessarily exposed to the risk of (among other things) a particular disease;

Secondly, the duty was intended to create a right to compensation;

Thirdly, it is established that the greater the exposure to asbestos, the greater the risk of contracting the disease;

Fourthly, medical science cannot prove whose asbestos is more likely than not to have produced the cell mutation which caused the disease;

Fifthly, the employee has contracted the disease against which he should have been protected.

3. Lord Bingham found 6 requirements (arguably a clearer re-statement than Lord Hoffmann’s 5 issues), namely, that the Claimant would be entitled to recover if:-

(i) The Claimant was employed at different times and for different periods by A and B (where A and B were two potential tort feasors) and;

(ii) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent the Claimant inhaling asbestos dust and;

(iii) Both A and B were in breach of that duty in relation to the Claimant during the period of the Claimant’s employment by each of them with the result that during both periods the Claimant inhaled excessive quantities of asbestos dust and;

(iv) The Claimant is suffering from a mesiothelioma and;

(v) Any cause or the mesiothelioma other than the inhalation of asbestos dust at work can be discounted and;

(vi) Claimant cannot prove because of the current limits of medical science on a balance of probabilities that his mesiothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together.

4. There might be other cases with sufficient common features for this rule to have application. That should be left for decision on a case by case basis. For the present, the limited McGhee principle was sufficient.



Following recent developments and perhaps notably the comments expressed by Laws LJ in Rahman, this decision should not be surprising and whilst, unwelcome to the insurance industry, does provide some valuable clarification of the relationship between McGhee and Wilsher that has bedevilled lawyers for sometime. The clear restrictions on the decision as expressed by Lords Hoffmann and Bingham, are welcome.

As a side issue, welcome also is Lord Hoffmann’s comment as to the role of common sense and judicial instinct. He was at pains to make clear that the decision was not a watering down or fudging or principles of causation, leaving the issue an open field to adventurous or imaginative Judges. If I can quote (at paragraph 53) “%u2026 the causal requirements for liability are normally framed in accordance with common sense. But, there is sometimes a tendency to appeal to common sense in order to avoid having to explain one’s reasons. It suggests that causal requirements are a matter of incommunicable Judicial instinct. I do not think that this is right. It should be possible to give reasons why one form of causal relationship will do in one situation but not in another”.

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