Fairchild v Glenhaven Funeral Services Ltd
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 is a leading case on causation in English tort law.Mr Fairchild had worked for a number of different employers, as a subcontractor for Leeds City Council, all of whom had negligently exposed him to asbestos.The House of Lords held that, following McGhee v National Coal Board[1] the appropriate test in this situation was whether the defendant had materially increased the risk of harm toward the plaintiff.It is on this rock of uncertainty, reflecting the point to which medical science has so far advanced, that the three claims were rejected by the Court of Appeal and by two of the three trial judges.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.If the mechanical application of generally accepted rules leads to such a result, there must be room to question the appropriateness of such an approach in such a case.That does not mean, however, that it must be a principle so broad that it takes no account of significant differences which affect whether it is fair and just to impose liability.In these circumstances, a rule requiring proof of a link between the defendant's asbestos and the claimant's disease would, with the arbitrary exception of single-employer cases, empty the duty of content.To say, for example, that the cause of Mr Matthews' cancer was his significant exposure to asbestos during two employments over a period of eight years, without being able to identify the day upon which he inhaled the fatal fibre, is a meaningful causal statement.The medical evidence shows that it is the only kind of causal statement about the disease which, in the present state of knowledge, a scientist would regard as possible.So the question of principle is this: in cases which exhibit the five features I have mentioned, which rule would be more in accordance with justice and the policy of common law and statute to protect employees against the risk of contracting asbestos-related diseases?I therefore regard McGhee as a powerful support for saying that when the five factors I have mentioned are present, the law should treat a material increase in risk as sufficient to satisfy the causal requirements for liability.It was an action for clinical negligence in which it was alleged that giving a premature baby excessive oxygen had caused retrolental fibroplasia, resulting in blindness.After the decision in Barker there was a swift and fierce political backlash, with large numbers of workers, families, trade unions, and Members of Parliament calling for the reversal of the ruling.The Fairchild (material increase in risk) exception to the ordinary rules of causation (balance of probabilities) was implemented into Section 3 of the Compensation Act 2006.This allows employees to recover damages when the conditions for applying the exception are met, these are laid out in Section 3(1)(a)-(d) of the Act: 3 Mesothelioma: damages (1)This section applies where— (a)a person (“the responsible person”) has negligently or in breach of statutory duty caused or permitted another person (“the victim”) to be exposed to asbestos, (b)the victim has contracted mesothelioma as a result of exposure to asbestos, (c)because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and (d)the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a), in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason).