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)

Ordinarily, a claimant must prove on the balance of probabilities that the defendant’s breach caused or materially contributed to the injury. An exceptional rule applies where successive defendants wrongfully exposed the claimant to asbestos, the claimant developed mesothelioma, other causes are discounted, and science cannot identify which exposure caused the disease. A defendant’s material and non-insignificant increase in the risk of that disease then supplies the necessary causal connection.

The exception is closely confined. It does not apply merely because causation is difficult to prove or where several distinct agents may have caused the injury. Each responsible defendant is liable for the claimant’s full loss, subject to rights of contribution.

These three conjoined appeals concerned employees who developed mesothelioma after substantial occupational exposure to asbestos during successive employments. Each respondent had exposed the relevant employee to asbestos in breach of duty. Medical science could establish that asbestos caused each disease and that greater exposure increased the risk, but could not identify which employer’s asbestos initiated the disease.

Mrs Fairchild’s claim had been dismissed by Curtis J, and Mrs Fox’s claim by Judge Mackay. Mitting J had entered judgment for Mr Matthews against two employers. In a reserved judgment reported at [2002] 1 WLR 1052, the Court of Appeal dismissed the Fairchild and Fox appeals and allowed the employers’ appeal in Matthews.

The central question was whether the conventional “but for” requirement should be modified where every relevant defendant breached a duty to protect against mesothelioma, the very risk materialised, other causes were discounted, and scientific knowledge made attribution between the wrongful exposures impossible.

1. Disposition. The House of Lords unanimously allowed all three appeals. The Court of Appeal had erred by requiring each claimant to prove that the disease would probably not have occurred but for the breach of the particular defendant.

2. The exceptional causal rule. Per Lord Bingham of Cornhill, where each of the six stated conditions was satisfied, a claimant could recover against each defendant that wrongfully exposed him to asbestos. Those conditions included successive exposures, duties directed against the risk of mesothelioma, breaches producing excessive exposure, occurrence of mesothelioma, effective exclusion of other causes, and scientific inability to attribute the disease to a particular exposure. It was just to treat each material exposure as contributing to the disease.

3. Nature and limits of the exception. Lord Nicholls of Birkenhead and Lord Hoffmann treated a material and non-insignificant increase in risk as a sufficient, less stringent causal connection. Lord Rodger of Earlsferry similarly held that proof of a material increase in risk was, in these circumstances, proof in law of a material contribution. The rule was exceptional and required restraint. It applied because the injury was the eventuation of the precise risk against which the defendants were bound to protect the employees, while science made fuller proof inherently impossible. Lord Hutton preferred to describe the process as a factual or legal inference of causation, but agreed that trial judges should apply it as a matter of law in cases of this kind.

4. Authority. The majority interpretation of McGhee v National Coal Board [1973] 1 WLR 1 was that materially increasing the risk had been treated as equivalent to materially contributing to the disease. That ratio applied despite the presence here of several wrongdoers. Wilsher v Essex Area Health Authority [1988] AC 1074 was correctly decided because several distinct agents could have caused the injury. Its description of McGhee as no more than a robust factual inference should no longer be treated as authoritative. The exception did not reverse the legal burden of proof.

5. Extent of liability. No argument for apportionment had been presented. Each liable defendant was therefore responsible for full compensation, while retaining the ordinary right to seek contribution from another employer liable for the same damage.

1. House of Lords: In Fairchild v Glenhaven Funeral Services Ltd and the conjoined appeals [2002] UKHL 22, the House unanimously allowed all three appeals and displaced the Court of Appeal’s application of the conventional causation test.
2. Court of Appeal: In a reserved judgment reported at [2002] 1 WLR 1052, the court dismissed the appeals of Mrs Fairchild and Mrs Fox. It allowed the employers’ appeal in Mr Matthews’s case and set aside his award.
3. High Court: Curtis J dismissed Mrs Fairchild’s claim, and Judge Mackay dismissed Mrs Fox’s claim. Mitting J entered judgment for Mr Matthews against Associated Portland Cement Manufacturers (1978) Ltd and British Uralite plc and awarded damages.