Personal Injury Liability Reviewed

Fairchild -v- Glenhaven Funeral Services Limited & Ors

Fox -v- Spousal (Midlands) Limited

Matthews -v- Associated Portland Cement Manufacturers (1978) Ltd & Ors

The above three appeals collectively referred to as the Fairchild appeal were heard in the House of Lords in May of this year and reasoned judgment was handed down on the 20 June 2002.

The central questions to be determined in all three appeals were described by Lord Bingham in this way

"If "

(1) C was employed at different times and for different periods by both A and B, and

(2) A and B were both subject to a duty to take reasonable care or to take all practical measures to prevent C inhaling asbestos dust because of the know risk that asbestos dust (if inhaled) might cause a mesothelioma, and

(3) Both A and B were in breach of that duty in relation to C during the periods of C's employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and

(4) C is found to be suffering from mesothelioma and

(5) Any cause of C's mesothelioma other than in inhalation of asbestos dust at work can be effectively discounted, but

(6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma 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,

is C entitled to recover damages against either A or B or against both A and B?

The Courts at first instance in all three cases had found against the claimants and had been unanimously upheld in the Court of Appeal.

It would seem that the claimants had failed to convince the Judges at first instance and the Court of Appeal that they were able to succeed notwithstanding that they were unable to satisfy the "but for" test.

The "but for" test" has been the traditional approach to establishing causation.

Lord Bingham of Cornhill referred to this principle in the following way

"In a personal injury action based on negligence or breach of statutory duty the claimant seeks to establish a breach by the defendant of a duty owed to the claimant which has caused him damage. For the purpose of analysis and for the purpose of pleading, proving and resolving the claim, lawyers find it convenient to break the claim into its constituents: the duty, the breach, the damage and the causal connection between the breach and the damage. In the generality of personal...