Fairchild v Glenhaven Funeral Services Ltd (Babcock International Ltd v National Grid Co plc, Dyson v Leeds City Council, Fox v Spousal (Midlands) Ltd, Matthews v Associated Portland Cement Manufacturers (1978) Ltd, Pendleton v Stone & Webster Engineering Ltd)

For occupational mesothelioma following asbestos exposure during more than one employment, a claimant must ordinarily prove on the balance of probabilities that a particular defendant’s breach caused or materially contributed to the disease. A material increase in risk does not itself satisfy that requirement where there are multiple possible causative agents or tortfeasors. The exceptional reasoning in McGhee was confined to its facts and could not bridge this evidential gap absent proof of cumulative causation. The Occupiers’ Liability Act 1957 concerns safety in using premises and does not, without more, impose liability on an occupier for dangers created by work activities of competent independent contractors. Provisional damages may nevertheless cover a future risk of mesothelioma or lung cancer where the statutory requirements are met.

Six conjoined appeals concerned asbestos-related claims. Fairchild, Fox and Matthews raised whether claimants who had worked for more than one employer could prove that a particular defendant caused their mesothelioma. Babcock, Dyson and Fairchild concerned whether occupiers were liable for asbestos exposure arising from work carried out by independent contractors on their premises. Pendleton concerned whether provisional damages could cover a future risk of mesothelioma or lung carcinoma despite present uncertainty about legal causation.

The causation claims had been dismissed by Curtis J and Judge Mackay, but Matthews had succeeded before Mitting J. The occupiers had succeeded before Eady J, Judge Bush and Curtis J. Judge Tetlow had ordered provisional damages in Pendleton. The central questions were whether causation could be inferred from increased risk and whether provisional damages could preserve a future claim.

Disposition. The defendants’ appeal in Matthews was allowed. The other five appeals were dismissed.

1. Causation. Mesothelioma was an indivisible disease initiated on an unidentifiable occasion by one or more asbestos fibres. Medical science could not establish which employment supplied the fibre or fibres responsible for malignant transformation. A claimant therefore could not prove causation against a particular defendant merely by proving negligent exposure and a material increase in risk.
2. The reasoning in McGhee v National Coal Board [1973] 1 WLR 1 had to be read in its factual context, involving one causative agent and one possible tortfeasor. Lord Bridge’s analysis in Wilsher v Essex Area Health Authority [1988] 1 AC 1074 established that McGhee created no general rule equating increased risk with material contribution. The approach could not be extended to multiple causative agents or tortfeasors unless the evidence established cumulative causation. The distinction between indivisible mesothelioma and cumulative diseases such as asbestosis justified time-based apportionment in the latter category, but not the former.
3. Occupiers. The Occupiers’ Liability Act 1957, particularly section 2(2), regulated dangers arising from the state of premises and safety in using them. It did not impose occupiers’ liability for injury caused by the manner in which work activities were conducted. Such liability had to arise, if at all, under common law or another statute. Mere occupiers who had engaged competent independent contractors and lacked knowledge of the relevant risk owed no employer-like duty to the contractors’ employees. Waddingtons’ admitted duty under section 63(1) of the Factories Act 1961 did not overcome the failure to prove causation.
4. Provisional damages. Section 51(1) of the County Courts Act 1984, together with CPR Part 41, permitted provisional damages where there was a proved or admitted chance that the claimant would later develop a specified serious disease as a result of the act or omission giving rise to the cause of action. Whether legal causation could later be established would be determined by the science and law applicable when the disease developed.
5. The cases disclosed a serious injustice which might require correction by legislation or an agreed insurance scheme. That observation was directed to law reform and did not alter the court’s application of existing law.

1. Court of Appeal (Civil Division) heard six conjoined appeals and allowed the defendants’ appeal in Matthews while dismissing the other five.
2. Queen’s Bench Division and County Courts had produced differing outcomes: causation claims were dismissed in Fairchild and Fox but succeeded in Matthews; the occupiers succeeded in Babcock, Dyson and Fairchild; and provisional damages were ordered for Pendleton.