Personal Injury Law

Asbestos cases - causation, responsibility of occupiers and provisional damages.Fairchild v Glenhaven Funeral Services Ltd and Others; Dyson and Twohey v Leeds City Council; Pendleton v Stone & Webster Engineering Ltd and Others; Fox v Spousal (Midland) Ltd; Matthews v Associated Portland Manufactures Ltd, CA, 11 December 2001 Lords Justice Brooke Laytham and Kay (see [2001] Gazette, 5 July, 37).

Lord Justice Brooke adopted the approach of Lord Steyn in Frost v Chief Constable South Yorkshire [1999] 2 AC 455 when he said: 'Our tort system sometimes results in imperfect justice, but is the best that the common law can do'.

If this is the case, then the tort system's best is unacceptable.

The Court of Appeal rejected the claims of the claimants in Fairchild, Fox and Matthews on the basis that where there is more than one employer who has exposed an employee to asbestos, the claimant cannot prove which employer is responsible for the fibre that creates the fatal mutation in the mesothelial cell that develops into the cancer, mesothelioma, in the instance when no single defendant is responsible for over 50% of the exposure.

It is important to understand that mesothelioma is an 'indivisible' injury.

In other words, the extent and severity of the injury is not increased by further exposure but the risk of contracting the condition increases.

Other asbestos conditions - asbestosis, pleural thickening and pleural plaques - are cumulative - that is, additional exposure increases the extent or severity of the injury.

The mechanism of the development of any cancer is not fully understood.

In mesothelioma, it is believed that there are six or seven stages of genetic change that take a cell from being healthy to malignant.

Until the last of those changes, the cell is not malignant.

Therefore, one fibre can commence the genetic change and another can be responsible for the seventh stage which causes the malignancy.

The defendants managed to persuade the Court of Appeal to look solely at the single cell that develops into a malignancy.

The claimants had argued that following McGhee v NCB [1973] 1 WLR 1 an increase in the risk of injury equated to a material contribution to the injury.

This was the 'robust and pragmatic' approach of the House of Lords commented on in the later case of Wilsher v Essex Health Authority [1998] AC 1074.

This was rejected by the Court of Appeal.

One suspects that the appeal judges may have been more susceptible to this suggestion if the claimants hadn't argued that as mesothelioma is an indivisible injury, proof that exposure from a single source could have caused the illness should result in a finding of 100% responsibility against that single defendant.

Technically, this is correct but in pursuing that argument the claimants ruled out the possibility of an apportionment as in the cumulative injury cases of Holtby v Brigham and Cowan [2000] 3 All ER 421 (asbestos), Thompson v Smiths Ships Repairers Limited [1984] 2 WLR 522 (deafness) and Allen v BREL (VWF) [2001] PIQR Q101.It seems that there is a logic to the argument that if Lord Reid in McGhee is right, that increase in risk equates to a material contribution to injury, then if there are multiple defendants who increase the risk of injury to be fair to the parties apportionment should apply.

The all or nothing gamble did not pay off.The next step for defendants is to attack the single employer cases in two ways: l To question the level of 'innocent' asbestos exposure compared with 'guilty' exposure that the claimant was exposed to with the single employer, with the claimant left to prove that the latter was responsible for the injurious fibre; l To refer to the 'background exposure' which apparently creates a 10% risk of mesothelioma in cases in which the occupational exposure was relatively brief.

In conclusion, the judgment effectively ends all claims with multiple exposers where no single defendant is responsible for more than 50% of the exposure.

Clarity is needed.

An appraisal of the decisions in Wilsher and McGhee needs to be conducted by the House of Lords.

There is a need to produce consistency between medical cause and legal causation.

Lord Justice Brooke quoted Lord Steyn from Frost.

However, Lord Steyn's comment attempted to excuse why a decision that did not fit in with the settled law was made because it fitted in with the public's expectation.

The public will find the decision in Fairchild difficult to understand.The cases of Fairchild, Babcock and Dyson concerned the occupier's liability issue.

Can an employee of a contractor sue the occupier for injury caused by asbestos exposure if there was no viable/insured employer that he could sue? The court considered the distinction between 'dangerous premises' and 'dangerous activities'.

The former was classed as an 'occupancy duty' the latter as an 'activity duty'.

The occupancy duty makes an occupier responsible for unusual dangers in the static condition of the premises.

In looking at the activity in the instant cases, the court considered the occupiers had acted reasonably in entrusting work to an independent contractor.

The only positive note is that the court held that if an occupier knew of the risk to the contractor's employees, then they have a duty to go beyond simply employing competent contractors to ensure that their competency is established.

Finally, the one successful case was that of Pendleton.

The defendants, rather surprisingly, suggested that Fairchild meant that an order for provisional damages should not include a right to return to the court for the condition of mesothelioma.

The Court of Appeal held that the order could include mesothelioma on the basis that by the time the sufferer returned to court medical science and/or the law may have changed to enable their claim to be successful.

It is an unreasonable judgment and one that will not rest well with the public.

It is to be hoped that the House of Lords will have an opportunity to provide the clarity that is needed from an analysis of their previous decisions in McGhee and Wilsher and overturn this decision.