Personal injury law

Asbestos cases

Fairchild v Glenhaven Funeral Services Ltd & Others, Fox v Spousal (Midland) Ltd, Matthews v Associated Portland Manufacturers Ltd, House of Lords, 20 June 2002, Lords Bingham, Nichols, Hoffmann, Hutton and Rodger

These cases have previously been reported in this column (see [2002] Gazette, 31 January, 28).

They arise out of the difficulty in answering the question: how does a claimant prove the source of the fibre or fibres which initiated the fatal mutation in a cell that culminates in the contraction of the cancer mesothelioma?

The House of Lords unanimously overturned the Court of Appeal's decision and found for the claimants in each of the cases.

To find for the defendants would 'reflect no credit on the law' (Lord Bingham); be 'deeply offensive' (Lord Nichols); and be 'morally wrong' (Lord Hoffmann).

As Lord Rodger summed up: 'The men did nothing wrong, whereas all the defendants wrongly exposed them to the risk of developing a fatal cancer, a risk that has eventuated in these cases.

At best it was only good luck if any particular defendant's negligence did not trigger the mesothelioma.'

As stated, the problem arose from the 'rock of uncertainty' (Lord Bingham) of showing the source of the fibre(s) that set off the cancer.

It is, as Lord Bingham stated, 'scientifically unprovable'.

Therefore, the House of Lords looked to the concept of causation and whether applying the 'but for' test is appropriate in all cases, that is but for the breach of duty of the defendant would the claimant's injury have been caused?

Lord Hoffmann provided us with a foretaste of how their Lordships would approach this case in his judgment in Kuwait Airways Corporation v Iraqi Airways Company [2002] 2 WLR when he stated 'it would be an irrational system of tort liability which did not insist upon there being some causal connection between the tortious act and the damage.

But causal connections can be of widely differing kinds.'

Therefore, their Lordships asked whether principle authority or policy requires or justifies a modified approach to the proof of causation in a particular case.

Lord Nichols said that 'exceptionally', but using 'considerable restraint', a 'less stringent' test should apply to the usual standard of causation where injustice would result from its application.

Lord Reid in McGhee v NCB [1973] 1 WLR 1 said 'in cases like this we must take a broader view'.

Their Lordships adopted McGhee.

They accepted that an increase in the risk of injury is sufficient if one cannot prove a material contribution to the injury.

Secondly, they accepted that an increase in risk of injury equated to a material contribution to the contraction of the injury, and thirdly that Lord Bridge's view in Wilsher v Essex Health Authority [1988] AC 1074 that Lord Reid's judgment in McGhee 'lays down no new principle of law' was incorrect (see Lord Bingham's judgment in Fairchild).

In conclusion, their Lordships accepted that the McGhee principle was justified by 'a strong policy argument in favour of compensating those who have suffered grave harm'.

Lord Hoffmann was not necessarily at one with his fellow judges.

He looked for a rational explanation as to why it was acceptable to apply a less stringent test of causation.

He stated there is a tendency to 'appeal to common sense in order to avoid having to explain one's reasons'.

Causal requirements are not a matter of 'incommunicable judicial instinct'.

His reasoning is that causal requirements should be adapted to conform to the grounds upon which liability is imposed.

To impose causal requirements which exclude liability in these cases is 'morally wrong' as one cannot separate questions of liability from questions of causation because one is never simply liable but always liable for something.

He found that the House of Lords in McGhee had treated 'a material increase in risk as sufficient in the circumstances to satisfy the causal requirements for liability'.

He did not agree, citing the doctors in that case, that increasing the risk of injury equated with material contribution to the injury.

Finally, his Lordship agreed with the approach given in a judgment in the Supreme Court of California of Rutherford v Owens-Illinois Inc 67 Cal Rptr 2d 16 (1997) - another asbestos-related cancer case in which the trial judge had found that exposure to asbestos was 'a substantial factor contributing to the plaintiff's risk of developing cancer'.

In conclusion, the Law Lords have simply followed a path that has already been beaten by others, particularly in the US.

In 1948, in the case of Summers v Tice 199 P.2d 1 (Cal 1948) two defendants shot at a quail and in doing so fired towards the plaintiff, who was hit.

The Supreme Court of California found that each of the shooters was liable for the resulting injury to the plaintiff.

In 1957, a similar approach was adopted in France in Litzinger v Kintzler Cass.

civ.

2e, 5 June 1957, when a group of huntsmen fired a salvo to mark the end of a deer hunt and the plaintiff was shot.

In Summers, as the court stated, 'to hold otherwise would be to exonerate both from liability even though each had been negligent and the injury resulted from such negligence'.

It is interesting that when their Lordships looked to the other jurisdictions, the vast majority had clarified the issues arising in Fairchild many years before.

They could only find three examples - in South Africa, Italy and Switzerland - where a decision was at odds with their finding.

Professor Christian Von Bar (cited in Lord Bingham's judgment) has written a book - The Common European Law of Torts 2000 - in which he quite properly states that 'it is unfortunate the House of Lords retreated from McGhee at a time when the laws were converging'.

He was referring to other European jurisdictions, in particular Germany and France.

If Lord Reid's judgment in McGhee had been accepted for what it was, a statement of the law, and not 'a legal inference' as Lord Hutton describes it, the cases would have been properly decided at first instance.

The decision merits consideration by all tort lawyers and not just those involved with industrial disease cases.

In a House of Lords that contains Lords Hoffmann and Steyn, who seem to be vying for the title of 'the People's Law Lord', and the apparently liberal Lord Bingham, one does wonder why the insurance industry allowed the case to proceed so far.

By Simon Allen, Russell Jones & Walker, Sheffield