Personal Injury lawBy Simon Allen, Russell Jones & Walker, SheffieldFairchild v Glenhaven Funeral Services Ltd, Waddingtons Plc and Leeds City Council Curtis J, 1 February 2001A couple of years ago there was a...Fairchild v Glenhaven Funeral Services Ltd, Waddingtons Plc and Leeds City Council Curtis J, 1 February 2001A couple of years ago there was a false perception that asbestos related claims were routine difficulties that arose mainly concerned the liquidation of a potential defendant.While this remains a current problem, as evidenced by the difficulties of the Chester Street Holdings Insurance Company, a number of important recent decisions demonstrate that these claims remain complex and far from straight forward.Causation is the primary problem.

Some asbestos conditions, such as asbestosis and pleural thickening, are cumulative; the disability increases with the level of exposure.

Apportionment of blame between multiple exposers was decided by the Court of Appeal in Holtby v Brigham and Cowan (Hull) Ltd [2000] 3 All ER 421.

While it is arguable whether or not the case should have been appealed, we now know that it will not progress to the House of Lords and that the decision still stands.Mesothelioma is a non-cumulative condition in that while the risk of injury increases with exposure, once contracted, the disability does not.

Pleural plaques may fall between the two in that the condition is dose related, but the physical disability being minimal is not affected by increased exposure.In the case of Fairchild, the High Court looked to the material contribution to an injury contrasted with an increase in the risk of injury in deciding against the widow of a man who died from mesothelioma.

The two central defendants agreed the cause of death and that they exposed him to substantial quantities of dust during his employment with them.

The agreed evidence was that their exposures were equal.

Because the mechanism by which an asbestos fibre produces the fatal mutation which leads to mesothelioma is unclear, the defendants argued that the claimant could not prove which employment had created the fatal illness.

Mr Justice Curtis agreed.The reality of course is that one or other, or both are to blame.

Lord Denning said in Baker v Market Harborough, that a defendant cannot escape liability in that case a passenger suffered injury in a road traffic accident where both drivers were killed.

The motor vehicles had been found in the middle of the road and there was no evidence as to why.Mr Justice Curtis seems to have been confused by consideration of two House of Lords decisions namely McGhee v NCB [1973], 1 WLR 1 and Wilsher v Essex Health Authority [1998] AC 1074.

In the former, a non-cumulative dermatitis case, the defendants failure to provide a shower could not be proved to have caused the claimants dermatitis, but increased the risk of him suffering from the condition.

Lord Reid stated where a disease has been caused by a mechanism that is unclear, one can properly infer that a breach of duty which increased the risk of the disease, thereby contributed to its cause.

In Wilsher there was a number of competing potential causes of the childs injury, which allowed Mr Justice Curtis to state a defendant is only liable if the claimant can prove that his negligent acts did in fact cause, or materially contribute to his injury, not merely to the risk of injury.

The contrast between increasing the risk of injury and the material contribution to that injury is critical.

Lord Reid used Wilsher to defeat the robust approach to causation of McGhee.

In mesothelioma cases the causative agent is asbestos.

There are no multiple potential causes as in Wilsher.

Lord Bridges reference to cumulatively in McGhee is misleading in that the condition is non-cumulative in the sense of increasing the level of disability.Medically, causation is accepted as an increase in the risk of injury as can be exemplified by cigarette smoking.

The medical profession cannot explain the mechanism by which cigarette smoking increases the risk of lung cancer, but because it does, accepts that smoking can cause injury.The case of Fairchild is extreme.

The two defendants were still in existence and admitted exposure of an equal nature.

It is rare to have such a circumstance on a time/extent basis.

A finding must be made.

Although the court will be confusing causation and apportionment if the Holtby approach is adopted on appeal, one can foresee such a finding.Beyond the facts of the Fairchild decision, it would be rare to have two current defendants with equal exposure and the court should be asked to give guidance as to how to deal with such cases.

While a case with two existing defendants in which exposure is even 51% to 49% in favour of employer A against employer B creates an opportunity for a finding against employer A on the balance of probabilities that his exposure released the fibre that resulted in mesothelioma, it is in cases of multiple defendants where an individual employer may not be responsible for more than 50% of the exposure and one of the defendants is not in existence when potential difficulties arise.For the time being Fairchild is to go to appeal and the decision is awaited with interest.