Recall: Product liability group – November 2002
Fairchild v Glenhaven Funeral Services Ltd
In brief: The unanimous decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd1 in June this year determined that, in special circumstances, multiple employers who breach their duty to take reasonable care to prevent an employee being exposed to asbestos dust may be liable for damages. AAR's Sophie Chamberlin reviews the findings.
Facts and history of proceedings
The judgment involved three appeals to the House of Lords on the issue of causation that were joined due to the similar factual circumstances of three claimants suffering from mesothelioma.
One of the claimants, Mr Matthews, was in the employment of multiple employers over the course of his working life, some for a period of years, and others for a period of weeks. Each of his employers admitted to being in breach of their duty not to expose Mr Matthews to asbestos dust, however, he was in fact exposed to such dust. Mr Matthews subsequently contracted mesothelioma.
The facts of this case highlight the inherent difficulty in determining which employer exposed the claimant to the asbestos dust that caused the progression of the disease and, furthermore, which employer was to be liable for causing the injury suffered.
House of Lords decision
The House of Lords addressed the appeal by the claimants from the decision of the Court of Appeal,2 by considering whether, in the special circumstances of such a case, principle, authority or policy required or justified a modified approach to proof of causation.
Although the House of Lords delivered a unanimous judgment, there were two lines of reasoning involved.
The majority reasoning considered the principles behind the causation test itself, being notions of justice. They decided that in these types of special cases, the circumstances call for a departure from the mechanical application of the causation principles. Lords Bingham, Hoffman and Rodgers each laid down rules for application of this special principle to other cases.
Lord Bingham considered that a claimant may succeed if:
- the claimant was employed at different times and for differing periods by both employer A and employer B; and
- employers A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent the claimant inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might cause a mesothelioma; and
- both Employer A and B were in breach of that duty in relation to the claimant during the periods of the claimant's employment by each of them, with the result that during both periods the claimant inhaled excessive quantities of asbestos dust; and
- the claimant is found to be suffering from a mesothelioma; and
- any cause of the claimant's mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted; yet
- the claimant cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by both A and B taken together.
Lord Hutton differed from the majority's line of reasoning, in that he considered the departure from causation could be explained on the basis that proof of causation was a matter which could be inferred from the facts.
Implications
The interests of employer defendants and their insurers may be adversely affected if the principles of Fairchild are applied in Australia. In addition to the decision's impact on employers, Fairchild creates unpredictability in being able to determine and advise on whether negligence causing damage has occurred this danger was acknowledged by the House of Lords.
This decision affects:
- health and pharmaceutical companies who may be potentially liable for a side effect of a generic product that is sold by several manufacturers;
- hospitals which supply blood for transfusion, for example in relation to hepatitis B;
- employers whose employees are exposed to biological agents that cause indivisible diseases such as anthrax, brucellosis, chlamydiosis, legionellosis, leptospiros, lyme disease, tetanus and tuberculosis; and
- employers, where employees (during the course of their employment) breathe gases at increased pressure, thereby causing lung or other organ damage.
References
- [2002] AII ER (D) 139 (Jun)
- [2002] 1 WLR 1052
For further information, please contact:
- Peter O'DonahooPartner,
Melbourne
Ph: +61 3 9613 8742
Peter.ODonahoo@aar.com.au
