Asbestos ruling may have wide implications for other negligence and product liability claims

In an unanimous judgment on Thursday 16th May, the House of Lords ruled in Fairchild -v- Glenhaven[1] that sufferers of mesothelioma, an asbestos-related disease, should be awarded compensation in cases where workers had been exposed to asbestos dust during employment by more than one employer, even where it could not be established which was to blame.

Mesothelioma, a form of cancer whose only known cause is asbestos dust, usually develops at least 10 years after a person's exposure. There are approximately 1,500 reported cases per year in the UK, most of which result in the victim's death after an illness of about 18 months. The precise sequence of events leading, from breathing in asbestos dust, to the development of a tumour remains unknown and probably complex. The disease is described as "indivisible", a medico-legal term to denote the scientific belief that it can develop following a single exposure to asbestos. This is distinguished from a "divisible" disease, such as asbestosis, in which the cumulative impact of the frequency and severity of exposures to asbestos affects the development and course of the disease.

The nature of the disease of mesothelioma and the way it develops, as well as the lack of scientific and medical knowledge about the detailed mechanics of the disease itself, means that the sufferer usually has great practical and evidential difficulties in establishing a case against the former employer. Firstly, because of the long gestation period for the disease, evidence of exposure is likely to be stale. Secondly, in many cases there will have been exposure to asbestos dust on numerous occasions, often over the course of a working life spanning several decades. Claimants may have worked on numerous building projects, for example, frequently for more than one employer. Sometimes they will have been in multiple employment with multiple exposures to the hazard. If it cannot be established on the balance of probabilities that the disease has been caused by exposure to asbestos in one particular period of employment, then, using a traditional legal approach, the claim inevitably fails.

In cases involving a "divisible"disease such as asbestosis, it is open to the Court to determine that a particular defendant employer has been responsible for either the whole or, more likely, a quantifiable part of a victim's harm because of the cumulative nature of the effects of exposure in the development of the illness[2]. The Court of Appeal decision in Fairchild dealt with the fact that mesothelioma, as an "indivisible"disease (ie believed to be caused by a single exposure) meant that it was not possible for the claimant to prove which of several exposures, in the course of different employments, could be said to have caused the disease. In those circumstances - what the Court of Appeal described as an unbridgeable "evidential gap" - it was unwilling to guess or assume when the guilty asbestos fibre had been inhaled because this might well produce an unjust result. The Court of Appeal's reasoning is set out in the following extract from the judgment by Brooke LJ:

"It may impose liability for the whole of an insidious disease on any employer with whom the claimant was employed for quite a short time in a long working life, when the claimant is wholly unable to prove on the balance of probabilities that that period of employment had any causative relationship with the inception of the disease ... we would be yielding to a contention that all those who have suffered injury after being exposed to a risk of that injury for which someone else should have protected them should be able to recover compensation even when they are quite unable to prove who was the culprit"

The Court of Appeal's judgment, handed down in December 2001, was roundly attacked by claimants' lawyers, and by politicians who championed their cause, and who called the outcome, variously: "a scandal"; "shameful"; "wrong" and "mocking of victims". Much of the legal argument before the House of Lords centred on whether the concept of material contribution to risk should apply. The House of Lords was urged to adopt a non-traditional approach to causation for situations - such as exists in mesothelioma cases- where the state of medical and scientific knowledge means that there is no practical and realistic prospect of a claimant proving the causal link required by the established legal approach. The House of Lords was invited to find in favour of mesothelioma sufferers - when the former employer/s either admitted or it was proved that they had negligently exposed the former worker to asbestos - on the basis that the employer's breach of duty had materially contributed to a greater risk of the disease developing.

It appears likely that the House of Lords has accepted that reasoning, though, of course, this is speculation until such time as the judgment is handed down later this summer. If it does, then this will mark a significant move away from the traditional strict legal approach to causation and dramatically lowers the evidential burden on claimants in relevant cases. This may in due course have far-reaching ramifications for other negligence and product liability claims where proof is inherently difficult to obtain. This is in addition to the estimated 500 active but pending claims and several thousand more potential mesothelioma claims expected to be pursued in the light of Fairchild.

Subject to careful reading of the full judgment in Fairchild, the Court's new approach is likely to be that - as a matter of public policy - any employer who can be shown to have materially increased risk to an employee of harm/a disease such as mesothelioma, for however short a period of employment, may be deemed to have caused the harm. If there is more than one employer then a defendant would be likely to be deemedliable for a share of the loss with other employers and this therefore could open the way for “market-share type arguments. This outcome would have obvious relevance, for example to blood product cases where hepatitis or HIV infection followed a series of blood transfusions. Other examples of "indivisible" diseases are those caused by biological agents (eg anthrax, brucellosis, chlamydiosis, legionellosis, leptospirosis, lyme disease, tetanus and tuberculosis) or from lung or other organ damage from work involving breathing gases at increased pressure (eg decompression illness and barotrauma).

The outcome in Fairchild is adverse to the interests of defendants (actual and potential) and their insurers. The Law Lords were clearly influenced, at least in the timing of the announcement, by the plight of the terminally ill claimant, Mr Matthews and his fellow sufferers. The detailed reasoning behind the judgment will need to be carefully studied in due course to determine to what extent the principle of causation has been undermined and whether that radical development is likely to spread to other situations where claimants will always find it difficult to prove a case using the traditional legal approach.

Further details can be obtained from Jessica Burt on +44(0)207 367 3589 or at [email protected], or Simon Chandler on +44(0)117 930 7816 or at [email protected].

[1] Fairchild -v- Glenhaven Funeral Services (2002), HL, 16th May (outline judgment only)

[2] Holtby -v- Brigham and Cowan (Hull) Ltd (2000) CA, 3 All E.R. 421