Each of the 5 Law Lords' (Bingham, Nicholls, Hoffmann, Hutton and Rodger) speeches considered a wide range of authorities and jurisdictions. The unanimous outcome and, especially, the nature of the reasoning mean that this is a powerful precedent and an important step in the development of the law of negligence. This article draws upon extracts of the judgment to illustrate its significance.
Three appeals were heard together each of which concerned different workers contracting the cancer mesothelioma, which is caused by breathing in asbestos dust. The gestation period of the disease is lengthy, generally measured in decades. Significantly, whilst medical science does not yet understand the detailed mechanics of how the disease develops, there is broad agreement that it can be initiated by the breathing in of a single asbestos fibre. The disease, once contracted, is not exacerbated by further exposures to asbestos.
The following summary of the career of one of the Appellants, Mr Matthews, illustrates the evidential problems of bringing such a claim: Between 1965 and 1967, Mr Matthews was employed by a company called Maidstone Sack & Metal and was exposed to significant quantities of asbestos dust. For 12 months of this period, he operated a scrap metal press and some of the items fed into the press had asbestos linings. For about 2 weeks of this period, he worked in a boilerhouse in Chatham Dockyard, dismantling a boiler and pipework which involved removal of asbestos lagging. Maidstone Sack & Metal no longer exists and cannot be sued. For about 5 weeks in early 1973, Mr Matthews was employed at a factory in Kent which manufactured pipes from asbestos material. The manufacturing process created large amounts of dust which permeated the factory. No measures were taken to protect against exposure. Mr Matthews was employed by a cement manufacturer at its factory between 1973 and 1981. During the last 4 years of that employment he worked as a boilerman, spending up to an hour per day in a boilerhouse where the boiler and pipework were lagged with asbestos material. He regularly swept the floor in the boilerhouse and was daily exposed to dust and debris containing asbestos fibres. Again, no effective measures were taken by the employer to protect him from asbestos dust.
In March 1999, Mr Matthews consulted his doctor complaining of chest pains. In February 2000 a diagnosis of mesothelioma was made and his condition continued to deteriorate. At the time of the House of Lords' hearing, Mr Matthews remained terminally ill (the disease is incurable) and had a life expectancy of a few months. The other Appellants, Mr Fox and Mr Fairchild, had had similar careers and both had died of the disease in 1996. Their claims were pursued by their families.
The nature of the disease meant that those acting for the Claimants were faced by what the Court of Appeal described as an unbridgeable evidential gap. In each case it was either admitted by the former employer, or capable of being proved, that the Claimants had been exposed to an unacceptable level of asbestos dust in breach of the employers' duty to protect them against that known hazard. However, it was impossible to prove when the particular asbestos fibre which triggered the disease was inhaled and therefore to which period of employment the injury related.
In evaluating such claims the law tests the causal connection between the alleged breach of duty and the injury complained of before allowing the claimant to recover compensation - the so-called 'but for test'. In other words the claimant must prove on the balance of probabilities that, but for the defendant's negligence, the claimant would not have suffered the injury. In these cases it was impossible for the Claimants, because of the limitations of medical science and the multiple exposures to asbestos during their careers, to prove that but for a particular employer's failure to take steps to protect them during one period of employment, the disease would not have been contracted.
The Court of Appeal unanimously rejected all 3 claims applying this conventional test. It did so in the following terms:
"Much as we would like to accommodate the arguments for the claimants, in our judgment they contained an inherent illogicality…If we were to accede to the Claimants' arguments, we would be distorting the law to accommodate the exigencies of a very hard case. We would be yielding to a contention that all those who have suffered injury after being exposed to a risk of that injury from 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."
In short, hard cases make bad law. The cause of the disease could not be proved to be the fault of one particular employer so the claims failed.
Reasoning of the House of Lords
The House of Lords addressed the Court of Appeal's 'unbridgeable evidential gap' by questioning the purpose of the test itself:
"The issue in these Appeals does not concern the general validity and applicability of that requirement, which is not in question, but is whether in special circumstances such as those in these cases there should be any variation or relaxation of it. The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another. Are these such cases? ...If the mechanical application of generally accepted rules leads to [an unjust] result, there must be room to question the appropriateness of such an approach in such a case."
In each of the 5 speeches there is a wide-ranging review of previous caselaw, of the approach to this problem in different jurisdictions and of public policy considerations. Their Lordships cite numerous previous authorities which had exhibited a range of legal techniques, including what the House of Lords deprecatingly described as 'legal fictions', in order to overcome similar causation hurdles and justify the award of compensation to claimants. Their Lordships preferred a more open and direct approach:
"... such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim" (footnote 1)
"The concepts of fairness, justice and reason underlie the rules which state the causal requirements of liability ...The purpose of the causal requirement rule is to produce a just result ..." (footnote 2)
"Any other outcome would be deeply offensive to instinctive notions of what justice requires and fairness demands." (footnote 3)
Acknowledging that there is an element of rough justice in imposing liability on a former employer without requiring the conventional causal link to be proved, the House of Lords justify this on the basis that it is the least unjust outcome. By formulating a 6-stage test for similar cases and emphasising that the case has been decided upon its own special facts, their Lordships made it clear that they regarded this judgment as an example of an incremental approach to the development of the law of tort, rather than some radical new departure.
Commentary and opinion
Fairchild can be viewed merely as the latest in a long line of examples of the Courts creating exceptions to existing law where its application to the particular facts of a case would deny justice to the victim of a tort. As is often the case when matters reach the House of Lords, there was "an obvious and inescapable clash of policy considerations" (footnote 4). What is unusual and potentially far-reaching in this case is the emphasis which their Lordships place upon the supreme objective of achieving a just outcome over what they saw as dogmatic adherence to conventional legal rules.
As usual when analysing such decisions, it is not possible to state with any degree of confidence how far and how quickly the principles are likely to develop (one might, provocatively, substitute the word 'sentiments' for the word 'principles'). As Lord Bingham put it in his conclusion:
"It would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development. Cases seeking to develop the principle must be decided when and as they arise."
The main difficulty caused by this judgment is that by undermining long-established legal concepts (which are used not just by judges but throughout the legal profession and beyond it by employers, manufacturers and their risk insurers) fresh uncertainty is generated and existing uncertainties exacerbated. In a legal system where the object of achieving a just result can justify the suspension, relaxation or alteration of any 'mere legal rule', the prospects for judicial consistency are alarmingly reduced. One person's justice is, to another, iniquitous. This is a danger acknowledged by Lord Hoffmann:
"The problem in this appeal is to formulate a just and fair rule. Clearly the rule must be based upon principle. However deserving the claimants may be, your Lordships are not exercising a discretion to adapt causal requirements to the individual case."
Their Lordships did not see this decision as revolutionary. The judgments emphasise that further extensions to this area of the law will continue to be allowed only with caution and restraint. For example, in reviewing the case of Wilsher -v- Essex Area Health Authority (footnote 5) their Lordships approved the Court of Appeal's decision to reject compensation for injury to a prematurely-born child. In that case breach of duty by the hospital had increased the risk of harm but it was not possible to say whether this breach or one of a number of other factors (or a combination of them) might equally probably have caused the harm. A review of Wilsher illustrates that public policy considerations - in that case the very economic survival of the NHS - were very much to the fore. Whilst this means that control over further legal developments can and will be exerted, the overall coherence and logic of the common law system has nevertheless, arguably, been undermined.
The decision in Fairchild increases the unpredictability of litigation not only for industrial disease cases but also for a wider range of matters where the factual matrix is complex and the evidential basis imperfect. Claimants and their advisers will seek to use Fairchild as a kind of trump card to overcome difficulties with causation, especially in highly emotive cases; the extent to which they are successful and the pace of further change to the law is a matter for speculation.
For further details, please contact Simon Chandler (Insurance and Re-insurance Group) at [email protected] or on +44 (0)117 930 7816, or Jessica Burt (Health, Safety and Products) at [email protected] or on +44(0) 20 7367 3589.
(footnote 1) Lord Bingham para 33
(footnote 2) Lord Hoffman para 56
(footnote 3) Lord Nicholls para 36
(footnote 4) Lord Bingham para 33
(footnote 5) 1988 AC 1074