2 (Mar., 2003), pp. 9. Asbestos materials were used on a daily basis. Until the late 1960s or early 1970s asbestos fibre was imported into Liverpool Docks in sacks. During each working day Mr Matthews had prolonged and substantial exposure to asbestos dust. For 12 months of this period he operated a scrap metal press and some of the items fed into the press had asbestos linings. The House of Lords approved the test of "materially increasing risk" of harm, as a deviation in some circumstances from the ordinary "balance of probabilities" test under the "but for" standard. Statute reference: This case concerns common law. The document also included … Jonathan Morgan. The claimants had been exposed to asbestos dust by more than one employer in different periods of … Logged in as READCUBE_USER. In Snell v Farrell [1990] 2 SCR 311 at 320, Sopinka J, delivering the judgment of the Supreme Court of Canada, said: McLachlin J, extra-judicially ("Negligence Law - Proving the Connection", in Torts Tomorrow, A Tribute to John Fleming, ed Mullany and Linden, LBC Information Services 1998, at p 16), has voiced a similar concern: 12. It was common ground that the deceased must inevitably have inhaled a quantity, even a large quantity, of noxious particles about which he could have no cause of complaint, and the only question was whether, in addition to those particles, he was, owing to the fault of the defenders in failing to provide adequate ventilation, bound to have inhaled a number of other particles which made a material contribution to his illness (p 616). No measures were taken to protect him against such exposure. The principle is a radical exception to the normal ‘but for’ rule and ought to be restricted. He regularly swept the floor in the boilerhouse, stirring up asbestos dust and debris. The claim was made by the widow and children of Mr Nicholson, who had worked in the dressing shop of the defenders' steel foundry, had inhaled dust containing minute siliceous particles while doing so, had contracted pneumoconiosis and had died. Fairchild suing on her own behalf and on behalf of the Estate of and dependants of Arthur Eric Fairchild (deceased) (appellant) v. It is accepted that the risk of developing a mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled: the greater the quantity of dust and fibre inhaled, the greater the risk. The case differs from the present in two obvious respects. Filters. Are these such cases? No effective measures were taken to protect him from exposure to asbestos dust. Learn more. The claimants were either the former employees of the defendants or, where the employees themselves had died, 3. � �g���R�� 2 0 obj It is not known what level of exposure to asbestos dust and fibre can be tolerated without significant risk of developing a mesothelioma, but it is known that those living in urban environments (although without occupational exposure) inhale large numbers of asbestos fibres without developing a mesothelioma. So C failed against both A and B. 1 0 obj As a result the risk eventuated and C suffered the very harm against which it was the duty of A and B to protect him. The defendants appealed against that decision, and the Court of Appeal allowed their appeal and set aside the award in Mr Matthews' favour. In a claim against his employer he succeeded before the Lord Ordinary, Lord Wheatley, and by a majority in the First Division of the Court of Session, the Lord President (Lord Clyde) dissenting. Again the case involved a single employer: but the dust, although "innocent" when first produced became, in effect, "guilty" because of the employer's conduct in allowing it to remain in the air for an excessive period. ���G�ǎ��{�����b������)�� �9��M zU�8�kҽ�8��ʹ�y"��:q�ab �lY�Ab,�c�px��R�!��*�:���>�ș�� W��V�ʝV��h��㨂�. Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 is a leading case on causation in English tort law.It concerned malignant mesothelioma, a deadly disease caused by breathing asbestos fibres. She challenges that decision on appeal to the House. In our judgment, this leap over the evidential gap not only defies logic but is also susceptible of unjust results. The decision of the House of Lords in Fairchild v.Glenhaven Funeral Services raises important questions about the compensation of employees for occupational injury. The Lord Ordinary found for the family, but his decision was reversed by the First Division. Shareable Link. It is only natural that, the dyke having been breached, the endobj In the course of his work Mr Fairchild inhaled substantial quantities of asbestos dust containing asbestos fibre which caused him to suffer a mesothelioma of the pleura, from which he died on 18 September 1996 at the age of 60. But the incidence of the tumour among those occupationally exposed to asbestos dust is about 1,000 times greater than in the general population, and there are some 1,500 cases reported annually. Fairchild and others v Glenhaven Funeral Services Ltd and others (2001) The Times, 13 December, CA; Fairchild and others v Glenhaven Funeral Services Ltd and others (2001) The Times, 13 December, CA. Fairchild v Glenhaven Funeral Services (HL transcript) | Practical Law This important decision lays down significant rules regarding the liability of insurers of Fairchild defendants. The pursuer was accordingly entitled to succeed. A and B owed C a duty to protect C against a risk of a particular and very serious kind. %PDF-1.5 The dust emanating from the pneumatic hammer involved no breach of duty by the employer, but that from the swing grinders did. <>/Metadata 341 0 R/ViewerPreferences 342 0 R>> Viscount Simonds' conclusion was clearly expressed (at pp 619-620): Lord Oaksey and Lord Morton of Henryton agreed. It is believed by the best medical opinion to involve a multi-stage process, in which 6 or 7 genetic changes occur in a normal cell to render it malignant. Explore the site for more case summaries, law lecture notes and quizzes. 103. Typical lagging work involved the removal of old lagging, the mixing of lagging paste, the cutting of lagging sections and the sweeping up of dust and debris. If this later exposure does involve a breach of duty by B, C will have no claim against A but will have a claim against B. 1 (HL) MLB headnote and full text. (Waddingtons plc was not an employer, but nothing turns on this distinction with the other cases.) Judgement for the case Fairchild v Glenhaven Funeral Services Ltd. Ps had been exposed to asbestos by different employers over different times and they caught a disease from it. Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. At first, attention was focused on the risk of contracting asbestosis and other pulmonary diseases. 8. In Environment Agency (formerly National Rivers Authority) v Empress Car Co. (Abertillery) Ltd [1999] 2 AC 22 at 29, he said: More recently, in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 WLR 1353, p 1388, para 128, he said: Laws LJ was reflecting this approach when he said in Rahman v Arearose Ltd [2001] QB 351 at 367-368: 13. Why Fairchild v Glenhaven Funeral Services is important. This note is concerned with the latest installment in this saga: International Energy Group Ltd v Zurich Insurance Plc UK Branch. 2003, 119(Jul), 388 After the death of Mr Fairchild his widow brought this action, originally against three defendants (not including the builder). Jonathan Morgan. Her appeal against that decision was dismissed by the Court of Appeal in the judgment already referred to. 5. On a number of occasions (adding up to about 2 days in all) he was in close proximity to men removing lagging from pipes, and such work created large amounts of asbestos dust. 6. The Court of Appeal dismissed her appeal against that decision in the judgment already referred to, finding it unnecessary (because of its decision on causation) to reach a final decision on all aspects of her common law claim against the Leeds City Council. Acknowledgement of the increased material risk of harm test as an exception to the but for test. In Bonnington Castings Ltd v Wardlaw [1956] AC 613, the pursuer contracted pneumoconiosis as a result of inhaling silica dust. Both employers breached their duty of care for him by exposing him to asbestos, but it cannot be determined which breach actually led to the poisoning, or if they both did. 2 Matthews v. Associated Portland Cement and British Uralite plc QBD 11.07.01. Yes No 24 June 2002 The issues. �{��U�Ĩ�^�N'�p����~vռVWA�C ��pNn My noble and learned friend Lord Hoffmann has, on more than one occasion, discouraged a mechanical approach to the issue of causation. It is noteworthy that two members of the House (Viscount Simonds and Lord Cohen) attached significance to the exposure of the deceased to an increased risk. Had there been only one tortfeasor, C would have been entitled to recover, but because the duty owed to him was broken by two tortfeasors and not only one, he is held to be entitled to recover against neither, because of his inability to prove what is scientifically unprovable. Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613 was factually a variant of Wardlaw's case. His condition has continued to deteriorate, and his life expectancy is now measured in months. It is a condition which may be latent for many years, usually for 30-40 years or more; development of the condition may take as short a period as 10 years, but it is thought that that is the period which elapses between the mutation of the first cell and the manifestation of symptoms of the condition. <> But the condition may be caused by a single fibre, or a few fibres, or many fibres: medical opinion holds none of these possibilities to be more probable than any other, and the condition once caused is not aggravated by further exposure. Keywords: compensation for mesothelioma; more than one employer. stream They failed to perform that duty. Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 Lord Nicholls “The present appeals are another example of such circumstances, where good policy reasons exist for departing from the usual threshold “but for” test of causal connection.” Tort 1 - Negligence - Factual Causation 2018 75 4 0 obj He was exposed to asbestos during the last four years of this employment when working as a boilerman. Thus in the case of asbestosis the following situation may arise. In these circumstances Mr Fox was exposed to large amounts of asbestos dust, often for many hours each day. C may then work for B, and again inhale quantities of asbestos dust which will have the effect of aggravating his asbestosis. The essential question underlying the appeals may be accurately expressed in this way. Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 Case summary last updated at 15/01/2020 19:03 by the Oxbridge Notes in-house law team. 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. He considered that any contribution which was not de minimis must be material. It is accepted that his condition was caused by exposure to asbestos dust. 4. INTRODUCTION The facts of Fairchild v Glenhaven Funeral Services Ltd1 are well known. 3 Judith Fairchild v. Glenhaven Funeral Services Ltd, Waddingtons plc and Leeds City Council [2001] EWCA Civ 1881. For the purposes of analysis, and for the purpose of pleading, proving and resolving the claim, lawyers find it convenient to break the claim into its constituent elements: the duty, the breach, the damage and the causal connection between the breach and the damage. by the House of Lords in the case of Fairchild v. Glenhaven Funeral Services Ltd.9 This is a case about questions of causation in tort law. fairchild (suing on her own behalf and on behalf of the estate of and dependants of arthur eric fairchild (deceased)) (appellant) v glenhaven funeral services limited and others (respondents) fox (suing as widow and administratrix of thomas fox (deceased)) (fc) (appellant) v … The evidence showed that even if more dust came from the pneumatic hammer than from the swing grinders, there was enough dust from the grinders to make a substantial contribution towards the pursuer's disease (p. 622). Three separate claimants contracted lung cancer (malignant mesothelioma) as a result of their exposure to asbestos during their various courses of employment with varying employers. The three appeals dealt with by the House of Lords involved employees who had been exposed to asbestos at work and had subsequently contracted mesothelioma (a form of cancer caused by asbestos exposure). (back to preceding text) 16. He walked across pipework disturbing the lagging. ��/03!7yy$�j�l N�l1�xp-r��^c1}�Wt T�W�J�G BG��wP4�Gu��zsB��5�X�ѭTvník��E�5&D+o [2���5x�u��j([�.�k So if C is employed successively by A and B and is exposed to asbestos dust and fibres during each employment and develops a mesothelioma, the very strong probability is that this will have been caused by inhalation of asbestos dust containing fibres. is C entitled to recover damages against either A or B or against both A and B? The Limits Of Fairchild v Glenhaven Funeral Services Ltd [5] My Lords, the opinions of all of your Lordships who heard Fairchild v Glenhaven Funeral Services Ltd expressed concern, in varying degrees, that the new exception should not be allowed to swallow up the rule. It is a very lengthy, but very well-argued decision, which in my view every teacher of comparative law should read. The work of handling asbestos cargoes would have exposed Mr Fox to substantial amounts of dust and it is unlikely that any measures would have been taken to protect him from such exposure. Mr Matthews consulted his doctor complaining of chest pain in March 1999. Mr Matthews was employed by Associated Portland Cement Manufacturers (1978) Ltd from 1973-81 at their factory in Strood, Kent. She challenges that causation decision on appeal to the House. There is no way of identifying, even on a balance of probabilities, the source of the fibre or fibres which initiated the genetic process which culminated in the malignant tumour. It has been recognised for very many years, at any rate since the "Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry" by Merewether and Price in 1930 and the making of the Asbestos Industry Regulations 1931, that it is injurious to inhale significant quantities of asbestos dust. In Fairchild, the principal issue was whether an employee could recover where he could prove negligently inflicted injury, but, having worked for more than one employer, not the identity of the person who caused the injury. I do not therefore consider that the House is acting contrary to principle in reviewing the applicability of the conventional test of causation to cases such as the present. In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 508, Mason CJ, sitting in the High Court of Australia, did not "accept that the 'but for' (causa sine qua non) test ever was or now should become the exclusive test of causation in negligence cases" and (at p 516) he added: 11. On 11 July 2001 Mitting J gave judgment in his favour against both defendants and awarded damages. He was described by a witness as being covered in dust from head to foot. The Queen 's Bench Division in Liverpool on 27 March 2001 Table of.. 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